U.S. Court of Appeals for the Ninth Circuit, 2017

Julian Engel v. Novex Biotech, LLC

U.S. Court of Appeals for the Ninth Circuit · Decided April 21, 2017 · Wallace, Smith, Erickson

689 F. App'x 510

Counsel

Elaine A. Ryan, Attorney, Bonnett, Fairbourn, Friedman & Balint, P.C., Phoenix, AZ, Patricia N. Syverson, Esquire, Manfred P. Muecke, Bonnett Fairbourn Friedman & Balint PC, San Diego, CA, Max A. Stein, Boodell & Domanskis, LLC, Chicago, IL, Stewart M. Weltman, Siprut, PC, Chicago, IL, for Plaintiff-Appellant, Steven William Garff, Attorney, Los An-geles, CA, Steven William Garff, Attorney, Jason M. Kerr, Esquire, Christopher B. Sullivan, Price Parkinson & Kérr PLLC, Salt Lake City, UT, for Defendant-Appel-lee Novex Biotech, LLC, Steven William Garff, Attorney, Los An-geles, CA, for Defendant-Appellee GNC Corporation

Cases that cite this one

4 later published cases cite this decision. The 3 that cite it most often are listed here.

Pizana v. Sanmedica International LLC (United States District Court for the Eastern District of California 2022)
Corbett v. PharmaCare U.S., Inc. (United States District Court for the Southern District of California 2021)
Alhareth Aloudi v. Intramedic Research Group (9th Cir. 2017)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

MEMORANDUM **

Julian Engel appeals from the district court judgment dismissing his second amended complaint for failing to state a claim upon which relief can be granted. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

For the reasons stated in a concurrently filed opinion in Serena Kwan, et al. v. SanMedica International, No. 15-15496, 1 the district court correctly applied established California law. Neither California’s Unfair Competition Law (‘the UCL”) nor its Consumer Legal Remedies Act (“the CLRA”) provides consumers with a private cause of action to enforce the substantiation provisions of California’s unfair competition or consumer protection laws.

As in Kwan, the district court did not err in concluding that Engel’s second amended complaint did not allege sufficient facts to support a claim that defendant’s advertising claims were actually false. The second amended complaint rests on allegations that defendant’s marketing claims are not supported by any reliable clinical trials and that a comprehensive search could not produce any publication to support claims that defendant’s product, Growth Factor-9, was clinically tested as claimed on its packaging. These allegations do not support a finding that the advertis *511 ing claims are actually false, only that they lack substantiation. As it did in Kwan, the district court appropriately declined En-gel’s invitation to incorporate Lanham Act analysis into California consumer protection law. The district court did not err in granting the motion to dismiss Engel’s second amended complaint.

Further, as in Kwan, the district court provided ample guidance for Engel to allege successfully a claim of actual falsehood when it dismissed the first amended complaint with leave to amend. Therefore, the court did not err in dismissing the second amended complaint with prejudice.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

. For purposes of oral argument only, we consolidated this appeal with the appeal in Kwan.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.