United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S REQUEST FOR JUDICIAL
NOTICE (DOC. 13) AND GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS (DOC. 12).
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Nick Yeldo, individually and on behalf of all others
similarly situated, alleges that defendant MusclePharm Corp.
utilizes misleading marketing practices to promote its
Glutamine product. This matter is presently before the Court
on defendant's request for judicial notice, (Doc. 13) and
motion to dismiss, (Doc. 12). Oral argument was held on
November 14, 2017. For the reasons stated below,
defendant's motion is
IN PART AND DENIED IN PART.
manufactures and sells dietary supplements and sports
nutrition products. (Doc. 9 at PageID 174). Plaintiff
purchased and consumed the dietary supplement MusclePharm
Glutamine (the Product) marketed and sold by defendant
throughout the four years preceding the filing of his
complaint. (Doc. 9 at PageID 176). The Product's label
and online advertisements indicate that it enhances muscle
growth and recovery, supports rebuilding and recovery from
the toughest workouts, reduces catabolism and supports an
anabolic environment, aids in muscle growth, causes faster
recovery, and helps consumers rehydrate, rebuild, and recover
faster and more efficiently. (Doc. 9 at PageID 175).
Glutamine is a “naturally
occurring, nonessential, neutral amino acid.” (Doc. 9
at PageID 176). “It is important as a constituent of
proteins and as a means of nitrogen transport between
tissues.” (Doc. 9 at PageID 177). Plaintiff
alleges that many healthy people, including athletes and body
builders, are under the impression that increased intake of
glutamine has beneficial effects. (Id.). He concedes
that Glutamine naturally found within the body plays a role
in muscle growth, recovery, and immunity support, but alleges
that “glutamine supplementation has been found to be
completely ineffective at mimicking these physiological
responses.” (Id.). In short, plaintiff alleges
that “the ingestion of defendant's Product does
absolutely nothing for the recovery from exercise, recovery
of muscle tissue, enhancement of muscle or ability to
decrease muscle wasting.” (Doc. 9 at PageID 178).
bases his claims regarding the ineffectiveness of glutamine
supplements on nine scientific studies. The first study
showed that “glutamine failed to affect muscle protein
kinetics of the test subjects.” (Doc. 9 at PageID 179,
n. 2). In a second study, “glutamine was continuously
infused” in “healthy humans” “for 2.5
hours at a rate corresponding to .4 grams/kg” and
“revealed that glutamine provision did [not] stimulate
muscle protein synthesis.” (Doc. 9 at PageID 179, n.
third study, researchers investigated the effect of glutamine
supplementation on the plasma and muscle tissue glutamine
concentrations of exercise-trained rates immediately and
three hours after a single exercise session until exhaustion.
(Doc. 9 at PageID 180, n. 4). During the final three weeks of
the six-week study, one group of rats received a daily dose
of glutamine. (Id.). While “[t]he plasma and
muscle glutamine levels were higher than placebo during the
post-exhaustive recovery period, ” the “increase
had no effect on the exercise swim test to exhaustion
performance, suggesting that elevations in plasma and muscle
glutamine levels have no benefit on muscle
fourth study investigated “the effect of oral glutamine
supplementation combined with resistance training in young
adults.” (Doc. 9 at PageID 180, n. 5). Subjects
received either a placebo or glutamine during six weeks of
resistance training. (Id.). “Results showed
that muscle strength and torque, fat free mass, and urinary
3-methyl histidine (a marker of muscle protein degradation)
all significantly increased with training, but were not
different between the groups, ” suggesting “that
L-glutamine supplementation during resistance training had no
significant effect of muscle performance, body composition,
or muscle protein degradation” in healthy young adults.
study examined “the effects of a combination of
effervescent creatine, ribose, and glutamine on muscle
strength, endurance, and body composition in
resistance-trained men.” (Doc. 9 at PageID 180-81 n.
6). Subjects performed resistance training for eight weeks
and received either a placebo or an experimental supplement
containing creatine, glutamine, and ribose.
(Id.).Both subject groups improved muscle strength,
endurance, and fat-free mass. But the groups were not
significantly different from one another, suggesting that the
“supplement, which included glutamine was no more
effective than [a] placebo in improving skeletal muscle
adaptation to resistance training.” (Id.).
study investigated the effects of creatine monohydrate and
glutamine supplementation on body composition and performance
measures. (Doc. 9 at PageID 181, n. 7.). Subjects engaged in
an eight-week resistance training program and received either
a placebo, creatine monohydrate (.3 grams/kg/day for one week
and then .03 grams/kg/day for seven weeks), or the same dose
of creatine in addition to 4 grams of glutamine per day.
(Id.). The creatine and the creatine glutamine
groups experienced body mass and fat-free mass increases at a
greater rate than the placebo group as well as a greater
improvement in the initial rate of muscle power production.
(Id.). Plaintiff claims that “[t]hese results
suggest that the creatine and creatine glutamine groups
were equally effective in producing skeletal adaption to
resistance training and that glutamine apparently had no
preferential effect in augmenting the results.”
seventh study examined if high-dose glutamine ingestion
affected weightlifting performance. (Doc. 9 at PageID 181-82,
n. 8). In “a double-blind, placebo-controlled,
crossover study, resistance-trained men performed
weightlifting exercise one hour after ingesting placebo . . .
or glutamine (.3 g/kg).” (Id.). According to
Plaintiffs, “[r]esults demonstrated no significant
differences in weightlifting performance (maximal repetitions
on the bench press and leg press exercises), indicating that
the short-term ingestion of glutamine did not enhance
weightlifting performance in resistance-trained men.”
eighth study investigated “whether glutamine ingestion
influenced acid-base balance and improved high-intensity
exercise performance.” (Doc. 9 at PageID 182, n. 9).
The “[r]esults showed that blood pH, bicarbonate, and
lactate, along with time to fatigue, were not significant[ly]
different between supplement conditions, indicating that the
acute ingestion of L-Glutamine did not enhance either
buffering potential or high-intensity exercise performance in
trained males.” (Id.).
in the ninth study, researchers examined “whether oral
glutamine, alone or in combination with hyperoxia, influenced
oxidative metabolism and cycle time-trial performance in
men.” (Doc. 9 at PageID 182, n. 10). Subjects received
either a placebo or a glutamine supplement one hour before
completing a brief high-intensity time-trial. (Id.).
The “[r]esults indicated no significant difference in
pulmonary oxygen uptake during the exercise test, thereby
indicating no effect of glutamine ingestion either alone or
in combination with hyperoxia.” (Id.).
claims that defendant's Product label and advertising are
false and misleading, that he was in fact mislead by
defendant's representations regarding the Product's
efficacy, and that he would not have purchased the Product,
or would not have paid as much for it, had he known the truth
about the misrepresentations.
seeks certification of two classes:
• National Class: All persons in the
United States who purchased the Product within the six years
preceding the Complaint.
• Michigan Subclass: All persons in the
State of Michigan who purchased the Product within the six
years preceding the Complaint.
alleges breach of express warranty (Count I), negligent
misrepresentation (Count III), fraud by uniform written
misrepresentation and omission / fraudulent inducement (Count
IV), and Unjust Enrichment (Count V) on behalf of the
National Class, or alternatively, the Michigan Subclass. He
alleges breach of implied warranties of merchantability and
fitness (Count II) on behalf of the Implied Warranty
Multi-State Class and Michigan Subclass. He also seeks
injunctive relief (Count VI) on behalf of the National Class.
confronted with a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) must construe the complaint in favor
of the plaintiff, accept the allegations of the complaint as
true, and determine whether the plaintiffs factual
allegations present plausible claims. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 554-56
(2007). “[N]aked assertions devoid of further factual
enhancement” and “unadorned,
the-defendant-unlawfully-harmed-me accusation[s]” are
insufficient to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The complaint need not contain
“detailed” factual allegations, but its
“factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that all
of the allegations in the complaint are true.”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007).