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Kwon v. NBTY, Inc. et al

REPLY in Support re Notice of Motion to Dismiss for Failure to State a Claim along with Defendants' Memorandum of Law in Support of Their Motion to Dismiss the Complaint, and Certificate of Service

15 Cited authorities

  1. Goldemberg v. Johnson & Johnson Consumer Cos.

    8 F. Supp. 3d 467 (S.D.N.Y. 2014)   Cited 261 times
    Holding that where defendant's trademark and advertising "exclusively tout[ed]" natural ingredients in its "Active Naturals" personal care products, the disclosure of synthetic ingredients on the back label did not as a matter of law prevent a reasonable consumer from being misled

  2. Weisblum v. Prophase Labs, Inc.

    88 F. Supp. 3d 283 (S.D.N.Y. 2015)   Cited 137 times   2 Legal Analyses
    Holding that a federal district court may hear an MMWA class action that falls below the MMWA's Class Action Jurisdictional Threshold so long as CAFA provides an independent basis for the court's subject-matter jurisdiction

  3. Chacanaca v. the Quaker Oats Co.

    752 F. Supp. 2d 1111 (N.D. Cal. 2010)   Cited 146 times   2 Legal Analyses
    Finding that "words, decals, and figures" that allegedly "depict Chewy Bars as ... a product that would contribute to a healthy and wholesome lifestyle" are not "nutrient content claims, and defendant's contention that the [Nutritional Labeling and Education Act] preempts the charge that they are misleading is without support."

  4. Brady v. Basic Research, L.L.C.

    101 F. Supp. 3d 217 (E.D.N.Y. 2015)   Cited 70 times   2 Legal Analyses
    Denying a motion to dismiss MMWA because the complaint pled a New York breach of express warranty claim

  5. Bowling v. Johnson & Johnson

    65 F. Supp. 3d 371 (S.D.N.Y. 2014)   Cited 33 times   3 Legal Analyses
    Holding that the "restores enamel" label on mouthwash was a "product description," not a "promise of performance over time"

  6. Clay v. CytoSport, Inc.

    Case No. 15-cv-165 L (DHB) (S.D. Cal. Aug. 19, 2015)   Cited 16 times   1 Legal Analyses
    Denying motion to dismiss but holding that “in order to prevail on these [nutrient content] claims, Plaintiffs will have to prove that Defendant did not comply with the FDCA provisions” contained in § 101.9(g)

  7. Gubala v. CVS Pharmacy, Inc.

    No. 14 C 9039 (N.D. Ill. Jun. 16, 2015)   Cited 8 times
    In Gubala v. CVS Pharmacy, Inc., 2015 WL 3777627 (N.D. Ill. 2015), and Mee v. I A Nutrition, Inc., 2015 WL 2251303 (N.D. Cal. 2015), plaintiffs alleged that the amount of protein in the defendants' protein powder was overstated because they included non-protein nitrogen-containing ingredients in their calculations.

  8. Bruaner v. MusclePharm Corp.

    Case No. CV 14-8869 FMO (AGRx) (C.D. Cal. Aug. 11, 2015)   Cited 6 times
    Granting motion to dismiss claims based on a defendants failure to list all of the ingredients on a product's label where the plaintiff failed to allege that the testing upon which he relied was conducted in accordance with the FDA's 12-sample method

  9. Rule 12 - Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing

    Fed. R. Civ. P. 12   Cited 358,817 times   954 Legal Analyses
    Granting the court discretion to exclude matters outside the pleadings presented to the court in defense of a motion to dismiss

  10. Section 343 - Misbranded food

    21 U.S.C. § 343   Cited 585 times   60 Legal Analyses
    Setting labeling requirements for food products

  11. Section 343-1 - National uniform nutrition labeling

    21 U.S.C. §§ 343-1   Cited 380 times   28 Legal Analyses
    Preempting state laws that conflict, inter alia, with federal law requiring foods to indicate: the name and location of the manufacturer, as well as the weight or quantity of food contained in a package; and the percentage of fruit or vegetable juice contained in a beverage

  12. Section 341 - Definitions and standards for food

    21 U.S.C. § 341   Cited 148 times   6 Legal Analyses
    Authorizing administrative regulations to establish a "reasonable definition and standard of identity" for "any food"

  13. Section 2311 - Applicability to other laws

    15 U.S.C. § 2311   Cited 106 times   1 Legal Analyses
    Providing that the MMWA is "inapplicable to any written warranty the making or content of which is otherwise governed by Federal law"

  14. Section 101.9 - Nutrition labeling of food

    21 C.F.R. § 101.9   Cited 148 times   47 Legal Analyses
    Recognizing that "Vitamin C" and "Ascorbic acid" are "synonym" that may be used in the alternative in a product's nutritional information labeling

  15. Section 101.36 - Nutrition labeling of dietary supplements

    21 C.F.R. § 101.36   Cited 30 times   4 Legal Analyses
    Allowing a seller to apply for an exemption from these regulations if it is technologically infeasible or otherwise impracticable to comply with them