govinfo:USCOURTS-cand-5_25-cv-04004-0

1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
A 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
RACHEL LUXTON, et al., 
Plaintiffs, 
v. 
 
MANEUVER MARKETING PTE. LTD., et 
al., 
Defendants. 
 

 
 
ORDER GRANTING IN PART AND 
DENYING IN PART MOTION TO 
DISMISS 
Re: Dkt. No. 32 
 
 
Plaintiffs Rachel Luxton and Eileen Phan bring this lawsuit against defendants BB 
Company and Maneuver Marketing PTE Ltd on behalf of putative classes of nationwide, 
California, and New York consumers. Plaintiffs allege that the representations on the label for 
Provitalize Probiotic Dietary Supplements that it contained 68 billion viable colony forming units 
(“CFUs”) of three specific probiotic strains, that they were present in clinically effective doses, 
and that they were clinically substantiated to support weight management and immune and gut 
health were false and misleading. They bring nine claims: (1) breach of express warranty; (2) 
unlawful business practices in violation of California’s Unfair Competition Law (“UCL”), Cal. 
Bus. & Prof. Code § 17200; (3) unfair business practices in violation of the UCL; (4) fraudulent 
business practices in violation of the UCL; (5) false advertising in violation of California Business 
& Professions Code § l7500 (“FAL”); (6) violation of the Consumers Legal Remedies Act 
(“CLRA”), California Civil Code § 1750; (7) violation of New York’s Consumer Protection from 
Deceptive Acts and Practices law, N.Y. GEN. BUS. LAW § 349 (“Section 349”); (8) violation of 
New York’s Consumer Protection from Deceptive Acts and Practices law, N.Y. GEN. BUS. LAW 
§ 350 (“Section 350”); and (9) unjust enrichment. 
Defendants now move to dismiss parts of plaintiffs’ amended complaint pursuant to 

 
2 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed herein, the motion is granted 
in part and denied in part. 
BACKGROUND 
Defendants previously marketed Provitalize supplements as an “everyday probiotic 
formula” to help perimenopausal, menopausal, and post-menopausal individuals manage their 
weight.1 Provitalize listed three “key benefits” on the label: “promot[ing] sustained weight 
management,” “enhance[ing] overall immune and gastrointestinal health,” and “natural & safe 
ingredients at clinically effective doses.” The labeling further supported these claims by 
advertising three specific probiotic strains that collectively amount to 68.2 billion colony forming 
units. In late 2024, defendants rebranded the supplements by eliminating all references to the 
probiotic strains, removing a “potency promise” from its labels, and abandoning any claims about 
the three key benefits listed above. The newly revised label now focuses on joint support. The 
formula remains the same. 
Plaintiffs purchased the supplement in 2023 and 2024 before the relabeling. Analytical 
tests conducted by plaintiffs on multiple lots indicate that the supplements contain less than 20% 
of the promised CFUs. They allege that the former label was misleading in three ways. First, the 
number of CFUs is markedly different from what the label promised. Second, the diminished 
number of CFUs “materially undermine[d]” the promise to provide consumers with “clinically 
effective doses” of the probiotic strains. Third, the clinical studies relied on by defendants to tout 
the promises of “weight management” and “immune and gastrointestinal health” failed to provide 
the reliable scientific evidence necessary to support these claims. 
LEGAL STANDARD 
The Federal Rules require a complaint to include a “short and plain statement of the claim 
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). If the complaint does not do 
so, the defendant may move to dismiss the complaint. Fed. R. Civ. P. 12(b)(6). Dismissal is 
required if the plaintiff fails to allege facts allowing the court to “draw the reasonable inference 
 
1 For the purposes of defendants’ Rule 12(b)(6) motion, the Court assumes the truth of the facts 
alleged in plaintiffs’ amended complaint. 

 
3 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 
(2009). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable 
legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela 
Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a 
plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face.” Bell 
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 
In considering a Rule 12(b)(6) motion, the Court must “accept all factual allegations in the 
complaint as true and construe the pleadings in the light most favorable” to the non-moving party. 
Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). While legal 
conclusions “can provide the [complaint’s] framework,” the Court will not assume they are correct 
unless adequately “supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts do not “accept 
as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 
inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell 
v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 
ANALYSIS 
Defendants limit their motion to dismiss to what they call the “benefits claims”—i.e., the 
claims that the products “promote weight management” and “enhance immune and gut health” and 
at “clinically effective” doses. First, they assert that under California law private litigants cannot 
bring causes of action based on an alleged lack of substantiation. In defendants’ view, because the 
California state law causes of action all stem from the allegation that defendants failed to 
adequately support their benefits claims (rather than the allegation that the advertising was 
affirmatively false), they cannot succeed as a matter of law. Second, they assert that the New York 
causes of action fail because plaintiffs fail to allege that the benefits claims were materially 
misleading to a reasonable consumer or that they suffered a cognizable injury. Defendants succeed 
on their first theory but fail on their second. 
I. UCL, FAL, and CLRA Claims 
Under California law, “[a]n advertising claim is false if it has ‘actually been disproved,’ 
such that ‘the plaintiff can point to evidence that directly conflicts with the claim[,]” while an 

 
4 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
advertising claim is merely “unsubstantiated if it has ‘no evidentiary support one way or the 
other.’” Obillo v. i-Health Inc., No. 24-CV-02459-PHK, 2025 WL 844389, at *6 (N.D. Cal. Mar. 
18, 2025) (quoting Cooper v. Curallux LLC, No. 20-cv-02455-PJH, 2020 WL 4732193, at *4 
(N.D. Cal. Aug. 14, 2020)) (cleaned up). No private right of action exists under California law for 
false advertising claims premised on an alleged lack of substantiation. Kwan v. SanMedica Int’l, 
854 F.3d 1088, 1096 (9th Cir. 2017) (citing Nat’l Council Against Health Fraud, Inc. v. King Bio 
Pharms., Inc., 107 Cal. App. 4th 1336, 1345 (2003)). While defendants concede for the purposes 
of the motion before the Court that the products contained less than the 62 billion CFUs advertised 
on the label, they argue that the benefits claims are based on an impermissible lack-of-
substantiation theory and therefore must be dismissed. 
Kwan is directly on point and requires dismissal of plaintiffs’ California causes of action 
targeting the label’s benefits claims. In that case, the Ninth Circuit considered allegations that a 
supplement’s advertised benefits (wrinkle reduction, stronger bones, heightened sex drive, 
youthful skin) as well as its claim that it was “clinically tested to boost human growth hormone,” 
were false. Kwan, 854 F.3d at 1092. The court held that the plaintiff’s “failure to allege specific 
facts pointing to actual falsehood constitutes a fatal flaw.” Id. at 1097. Without those specific 
facts, the plaintiff merely alleged an unsubstantiation claim. 
Unlike the plaintiff in Kwan, plaintiffs here cite testing that directly contradicts certain of 
the defendants’ claims. But that testing analyzed only the amount of CFUs in the product at issue 
and did not address whether the product failed to deliver the promised health benefits or whether 
the level of probiotics actually present in the product was ineffective. And while plaintiffs cite 
various clinical studies in support of their claim of falsehood, the cited studies merely identified 
health benefits that were provided at CFU levels far exceeding both the advertised amount and the 
amount actually present in defendants’ supplement. Crucially, they did not identify the CFU level 
at which a product would no longer provide such health benefits. While the studies may cast doubt 
on the efficacy of defendants’ supplement, they do not provide evidence of the actual falsehood of 
any of defendants’ benefits claims. In the absence of any allegations “pointing to actual falsehood” 
as to those claims, plaintiffs’ California state law causes of action challenging defendants’ benefits 

 
5 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
claims suffer from the same “fatal flaw” present in Kwan and must be dismissed. Id. at 1097. 
Dismissal of those claims is without prejudice and with leave to amend. 
II. New York Claims 
To plausibly allege a violation of either Sections 349 or 350, “a plaintiff must allege that a 
defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that 
(3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.” Orlander v. 
Staples, Inc., 802 F.3d 289, 300 (2d Cir. 2015). These claims “are not subject to the pleading-with-
particularity requirements of Rule 9(b)” but instead need only meet the Rule 8(a) standard. Greene 
v. Gerber Prods. Co., 262 F.Supp.3d 38, 67 (E.D.N.Y. 2017). Defendants argue that plaintiffs fail 
to plausibly allege the second and third elements. 
A product is materially misleading if it is “likely to mislead a reasonable consumer acting 
reasonably under the circumstances.” Id. (citation omitted). While the reasonable consumer 
inquiry is generally a question of fact, Scholder, 2022 WL 125742, at *3, whether a product’s 
label is materially misleading may still occasionally be decided as a matter of law, see, e.g., 
Geffner v. Coca-Cola Co., 928 F.3d 198, 200 (2d Cir. 2019). When courts have dismissed 
complaints alleging misleading labels, however, the legal claims’ flaws have been obvious. See id. 
at 200 (noting that there was “no dispute” as to whether Diet Coke met the federal requirements to 
be labeled diet and dismissing complaint alleging that the label’s reference to Diet Coke as a 
“diet” product was misleading); Fink v. Time Warner Cable, 714 F.3d 739, 742 (2d Cir. 2013) 
(dismissing a complaint after noting that a plaintiff “may not misquote or misleadingly excerpt the 
language of the advertisement in his pleadings and expect his action to survive a motion to 
dismiss”); Holve v. McCormick & Co., Inc., 334 F. Supp. 3d 535, 557 (W.D.N.Y. 2018) 
(dismissing a complaint because it contained “no factual allegations supporting claims related to 
[the products at issue]”); Podpeskar v. Dannon Co., Inc., No. 16-CV-8478 (KBF), 2017 WL 
6001845, at *5 (S.D.N.Y. Dec. 3, 2017) (dismissing a complaint challenging “natural” labelling 
on yogurt when plaintiff’s complaint failed to allege “that any ingredient used in the Products is 
unnatural”). 
Plaintiffs’ case is far stronger than those cited above. “In determining whether a reasonable 

 
6 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
consumer would have been misled by a particular advertisement, context is crucial. [The court] 
therefore consider[s] the challenged advertisement as a whole.” Mantikas v. Kellogg Co., 910 F.3d 
633, 636 (2d Cir. 2018) (cleaned up). Plaintiffs here present evidence that at least one part of the 
label—the amount of CFUs present in the supplement—was false. Because the supplement’s 
composition was correlated with its ability to effectuate its claimed benefits, its failure to provide 
the promised amount undermines defendants’ promise to provide consumers with “clinically 
effective” doses of the supplement. At the pleading stage, the Court cannot determine that a 
reasonable consumer would not find that the label’s representations misleading. Plaintiffs also 
sufficiently allege an injury—namely, that they paid more for the supplements than they would 
have otherwise done because of the misleading label. Such a price premium theory of injury is 
permissible under the New York state laws at issue here. Zottola v. Eisai Inc., 564 F. Supp. 3d 
302, 310 n.6 (S.D.N.Y. 2021) (citing Ackerman v. Coca-Cola Co., No. 09-CV-00395, 2010 WL 
2925955, at *23 (E.D.N.Y. July 21, 2010)). 
Accordingly, defendants’ motion to dismiss plaintiffs’ New York causes of action 
challenging the label’s benefits claims is denied. 
III. Breach of Express Warranty 
An express warranty is created by “[a]ny affirmation of fact or promise made by the seller 
to the buyer which relates to the goods and becomes part of the basis of the bargain.” Cal. Com. 
Code § 2313; N.Y. U.C.C. Law § 2-313. Defendants concede that the express warranty claims rise 
and fall with the statutory claims. They do not provide any argument as to what should happen to 
the California express warranty claims if only the New York statutory claims go forward.2 
Although district courts within the Ninth Circuit regularly hold that “stating a claim under 
California consumer protection statutes is sufficient to state a claim for express warranty,” James 
v. Chocmod USA Inc., 773 F. Supp. 3d 945, 961 (E.D. Cal. 2025) (collecting cases), failure to state 
a claim under California state law is not dispositive as to a plaintiff’s express warranty claim, see, 
e.g., Van Mourik v. Big Heart Pet Brands, Inc., No. 3:17-CV-03889-JD, 2018 WL 1116715, at *5 
 
2 Both parties agree that because the New York statutory claims survive, so do the express 
warranty claims arising under New York law. 

 
7 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
(N.D. Cal. Mar. 1, 2018) (dismissing all California statutory claims but allowing the express 
warranty claim to proceed). Because defendants provide no other argument as to why plaintiffs 
fail to adequately allege their California breach of express warranty claims, the Court declines to 
dismiss them. 
IV. Unjust Enrichment/Quasi-Contract Claims 
There is a split in California caselaw over whether unjust enrichment is an independent 
cause of action. Compare First Nationwide Sav. v. Perry, 11 Cal. App. 4th 1657, 1663 (1992) 
(unjust enrichment is an independent cause of action) with Sepanossian v. Nat’l Ready Mix Co., 
Inc., 97 Cal. App. 5th 192, 206 (2023) (“There is no cause of action in California labeled ‘unjust 
enrichment.’”). But a court may construe an unjust enrichment cause of action as a quasi-contract 
claim seeking restitution. Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015). 
To be certain, a defendant cannot ultimately be held liable on both a breach of an express contract 
theory and a quasi-contract theory of unjust enrichment. But at the pleading stage a plaintiff may 
allege alternative theories of liability if nothing on the face of the complaint renders plaintiffs’ 
quasi-contract theory implausible. FRCP 8(d); see, e.g., Clark v. Nordic Nats., Inc., No. 24-CV-
04058-EKL, 2025 WL 1592676, at *6 (N.D. Cal. June 5, 2025); cf., e.g., Beluca Ventures LLC v. 
Aktiebolag, 622 F. Supp. 3d 806, 813 (N.D. Cal. 2022). 
Accordingly, although plaintiffs cannot ultimately succeed on both theories, they may 
continue to pursue their quasi-contract unjust enrichment and breach of express warranty claims at 
the pleadings stage. 
 
 
 
 
 
 
 
 

 
8 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
CONCLUSION 
 For the foregoing reasons, defendants’ motion to dismiss is GRANTED as to the benefits 
claims challenged in Counts 2, 3, 4, 5, and 6. Dismissal is without prejudice and with leave to 
amend. Defendants’ motion is otherwise DENIED. 
 
IT IS SO ORDERED. 
 
Dated: June 16, 2026 
 
P. Casey Pitts 
United States District Judge 

Passage view · GavelSight