                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-1724


In re:    GNC CORPORATION; TRIFLEX PRODUCTS MARKETING AND
SALES PRACTICES LITIGATION (NO. II)

-------------------

YVONNE BROWN; SHAWN HOWARD, on hehalf of themselves and all
others similarly situated; MICHAEL LERMA, On Behalf of
Themselves and All Others Similarly Situated; JEREMY GAATZ,
On Behalf of Themselves and All Others Similarly Situated;
ROBERT TOBACK; ROBERT CALVERT; THOMAS FLOWERS; JOHN J.
GROSS; JUSTIN M. GEORGE; LOUIS LASTRES, on behalf of
themselves and all others similarly situated,

                Plaintiffs - Appellants,

           v.

GNC CORPORATION, a Delaware Corporation; GNC HOLDINGS, INC.;
RITE AID CORPORATION,

                Defendants - Appellees.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:14-md-02491-JFM)


Argued:   March 25, 2015                   Decided:   June 19, 2015


Before NIEMEYER and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by published opinion.    Judge Floyd wrote the opinion,
in which Judge Niemeyer and Senior Judge Hamilton joined.
ARGUED: Robert Jeffrey Berg, DENLEA & CARTON LLP, White Plains,
New York, for Appellants.      Joseph R. Palmore, MORRISON &
FOERSTER, LLP, Washington, D.C., for Appellees.    ON BRIEF: E.
Duncan Getchell, Jr., Richmond, Virginia, Gordon W. Schmidt,
Courtney S. Schorr, MCGUIREWOODS, LLP, Pittsburgh, Pennsylvania,
for Appellees.




                               2
FLOYD, Circuit Judge:

       Appellants        are        consumers         who     purchased         joint        health

supplements       produced          and    sold       by    GNC     and    Rite    Aid.         The

supplements all contain glucosamine and chondroitin, and most

contain additional purportedly active ingredients.                                    Appellants

allege     that    GNC        and    Rite      Aid     have       violated      the     consumer

protection laws of various states by marketing these supplements

as promoting joint health, even though many scientific studies

have     shown    that        glucosamine         and        chondroitin        are     no    more

effective        than     a     placebo        in          treating       the     symptoms      of

osteoarthritis.          GNC and Rite Aid moved to dismiss the complaint

for failure to state a claim, arguing that the complaint failed

to   adequately     plead       the       falsity      of     the     allegedly       misleading

marketing     representations.                 The      district       court      granted      the

motion in full.           Because marketing statements that accurately

describe     the        findings          of   duly         qualified       and       reasonable

scientific experts are not literally false, we affirm.



                                               I.

       Michael Lerma, Jeremy Gaatz, Robert Toback, Robert Calvert,

Shawn    Howard,    Thomas          Flowers,      John       Gross,       and   Justin       George

(collectively “Plaintiffs”) purchased a variety of joint health

supplements produced by General Nutrition Corporation and GNC

Holdings,    Inc.       (collectively          “GNC”)        and    Rite    Aid    Corporation

                                                  3
(“Rite Aid”).        In putative class actions filed in federal courts

in   several    states,        they    alleged     that       the   supplements      are

ineffective     as     marketed       and   that    GNC       and   Rite    Aid     (“the

Companies”)         violated     various        state      consumer         protection,

deceptive      advertising,       and       express       warranty       statutes     by

misrepresenting       the   effectiveness          of   the    supplements. 1         The

Judicial Panel on Multidistrict Litigation transferred three of

these actions (and two tag-along actions) to the United States

District Court for the District of Maryland for coordinated or

consolidated         pretrial     proceedings.                Plaintiffs’         counsel

established     a    leadership       structure     and    filed     a     Consolidated

Amended Complaint (CAC), at issue in this appeal. 2                        Because this

case comes to us on a motion to dismiss for failure to state a

claim, we state the facts as alleged in the CAC and assume them

to be true.         Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d

597, 601 (4th Cir. 2015).

     GNC manufactures, markets, distributes, and sells a line of

joint health dietary supplements under the brand name TriFlex:

     1
       The GNC plaintiffs (Lerma, Gaatz, Toback, Howard, and
Calvert) bring Counts I through VIII.    The Rite Aid plaintiffs
(Flowers, George, and Gross) bring Counts IX through XIII.
     2
       Although Brown v. GNC Corp., 13-05890 (N.D. Cal. filed
Dec. 19, 2013), was also transferred to the district court by
the Multidistrict Litigation Panel, the CAC does not include
Yvonne Brown (the plaintiff in that action) among the named
plaintiffs.



                                            4
GNC TriFlex; GNC TriFlex Fast-Acting; GNC TriFlex Sport; and GNC

TriFlex     Complete       Vitapak.       All   of    the    products       contain    the

compounds     glucosamine          hydrochloride       and     chondroitin        sulfate

(“glucosamine        and     chondroitin”).          They    also    all    contain    the

ingredients     methylsulfonyl-methane               (MSM)    and    hyaluronic       acid

(HA).       TriFlex    Fast-Acting       and    TriFlex      Sport       also   contain   a

variety of purportedly beneficial herbs, including white willow

bark     extract,     hops    cones     extract,      and    Chinese      skullcap    root

extract.      Finally, TriFlex Complete Vitapak contains tablets of

TriFlex Fast-Acting along with separate fish oil, willow bark,

and MSM supplements.

         The TriFlex product labels represent that the supplements

“promote[] joint mobility & flexibility,” “protect[] joints from

wear and tear of exercise,” “rebuild[] cartilage and lubricate[]

joints,” and provide “[m]aximum strength joint comfort.”                              J.A.

30, 189–93.          The     product    label   for    TriFlex       Fast-Acting      also

represents that the product was “[c]linically studied” by means

of   a    “12-week    multi-center,       randomized,        double-blind,        placebo

controlled study of 60 adults . . . taking 250 mg/day of the GNC

TriFlex     Fast-Acting        Blend”    and    was    “shown       to    improve    joint

comfort and function.”             J.A. 193.     The TriFlex Fast-Acting label

includes a chart representing that TriFlex Fast-Acting provides

a 20% improvement in joint function and 25-30% improvement in

joint flexibility.           Id.

                                            5
       Rite Aid markets, distributes, and sells a line of house-

brand        joint      health         dietary          supplements:         Rite      Aid

Glucosamine/Chondroitin;                      Rite                 Aid             Natural

Glucosamine/Chondroitin;              Rite        Aid     Glucosamine        Chondroitin

Advanced      Complex;      Rite      Aid    Glucosamine       Chondroitin,         Triple

Strength + MSM; Rite Aid Glucosamine Chondroitin + MSM; and Rite

Aid Glucosamine Chondroitin Advanced Complex with HA.                             The Rite

Aid products are manufactured by GNC, and GNC is contractually

obligated to indemnify Rite Aid for the claims at issue here.

All     of    the    Rite     Aid      products          contain     glucosamine       and

chondroitin.            All      of     the        products        except     Rite     Aid

Glucosamine/Chondroitin                 and             Rite         Aid           Natural

Glucosamine/Chondroitin            also      contain       MSM,     HA,     and    various

purportedly      beneficial        herbs     including      Chinese       skullcap    root

extract, black catechu, and boswellia serrata gum extract.                             All

of    the    products    represent      either      that    they     “promote[]      joint

health” or that they “help[] rebuild cartilage and lubricate

joints.”      J.A. 195–205.

       The named plaintiffs purchased several of the GNC and Rite

Aid products in a number of states.                      No plaintiff alleges that

he or she was harmed by consuming the products, or that the

products       did   not      contain        the        advertised       quantities     of

glucosamine and chondroitin.                Rather, Plaintiffs allege that the

products are incapable of providing the advertised joint health

                                              6
benefits, and that they would not have purchased the products

but for the Companies’ false advertising.                          They therefore bring

suit on behalf of themselves and similarly situated purchasers

under the consumer protection laws of their states.

       Lerma, a California resident, purchased TriFlex Fast-Acting

in California and brings Counts II and III under California’s

Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.,

and Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq.

Gaatz, an Illinois resident, purchased TriFlex Sport in Illinois

and    brings        Count      IV   under     Illinois’s          Consumer     Fraud    and

Deceptive Business Practices Act, 815 Ill. Comp. Stat. 505/1 et

seq.      Toback, a Florida resident, purchased TriFlex Complete

Vitapak       in     Florida     and    brings       Count     V    under     the   Florida

Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201

et    seq.         Calvert,     an   Ohio    resident,       purchased      TriFlex     Fast-

Acting       in    Ohio   and    brings      Count   VIII     for    breach    of   express

warranty          under   Ohio’s     UCC,     Ohio    Rev.      Code   Ann.     § 1302.26.

Howard, a New York resident, purchased TriFlex Fast-Acting in

New York and brings Counts VI and VII under New York’s deceptive

business practices statute, N.Y. Gen. Bus. Law § 349, and false

advertising         statute,     N.Y.       Gen.   Bus.   Law      § 350.      Flowers,     a

California resident, purchased unspecified Rite Aid products in

California and brings Counts X and XI under California’s Unfair

Competition Law and Consumers Legal Remedies Act.                             Gross, a New

                                               7
Jersey resident, purchased unspecified Rite Aid products in New

Jersey and brings Count XII under the New Jersey Consumer Fraud

Act, N.J. Stat. Ann. § 56:8-1 et seq.                        And finally, George, a

Pennsylvania        resident,           purchased             Rite            Aid         Natural

Glucosamine/Chondroitin           in   Pennsylvania          and     brings         Count      XIII

under       Pennsylvania’s       Unfair       Trade        Practices          and        Consumer

Protection Law, 73 Pa. Stat. Ann. § 201-1 et seq.

       In    essence,    Plaintiffs          allege        that    the     various         health

representations         made    on     the    products’           packaging         are     false

because “the vast weight of competent and reliable scientific

evidence”      indicates       that    glucosamine          and    chondroitin            do   not

provide the promised health benefits.                       J.A. 33.          In support of

this    conclusion,      Plaintiffs          cite      a    number       of    peer-reviewed

published studies that collectively show that “glucosamine and

chondroitin[]      are     ineffective           at    treating       the       symptoms         of

osteoarthritis, whether taken alone or in combination with each

other.”      J.A. 23.      Plaintiffs note that while the cited studies

were performed on patients with arthritis, “experts in the field

deem    these    clinical       studies      to       be   appropriate          proxies        for

whether [glucosamine and chondroitin] are effective for . . .

both        arthritic       and        non-arthritic               users            of      these

ingredients.”       Id. n.5.          Plaintiffs cite at least nine studies

that are claimed to show that glucosamine, chondroitin, or both

are no more effective than a placebo in relieving the symptoms

                                             8
of arthritis.         Plaintiffs also cite two studies that purportedly

show that MSM is no more effective than a placebo in relieving

the symptoms of knee arthritis.                     The CAC does not include any

allegations         about       the   effectiveness       of    the    herbal     compounds

found    in     the    products,        or   cite    any       studies       regarding    the

effectiveness of any of these herbal compounds at relieving the

symptoms of arthritis.

      The Companies moved to dismiss the CAC for failure to state

a   claim     under    Rule       12(b)(6)    of    the    Federal       Rules    of   Civil

Procedure.       The district court granted the motion in full.                            The

court found that the plaintiffs had failed to plead that “any

reasonable      expert       would     conclude     from       the    cited    [scientific]

studies that glucosamine and chondroitin are ineffective in non-

arthritic consumers,” and concluded that under all of the state

consumer protection laws at issue in this case, “[i]f there are

experts       who     support         what   [the     Companies]         say     in      their

advertisements,             the       advertisements           are     not     false       and

misleading . . . .”               J.A. 248.         In other words, the district

court    held       that    a     manufacturer      cannot      be    liable     for     false

advertising so long as at least one qualified expert opines that

the representations made are truthful, even if the overwhelming

weight of scientific evidence is to the contrary.

        The district court dismissed the CAC without prejudice and

expressly granted the plaintiffs leave to re-file if they could

                                              9
plead (in accordance with Rule 11) that “any reasonable expert

would    conclude       from      the     cited    studies   that    glucosamine      and

chondroitin       do        not    improve     joint      health    in    non-arthritic

consumers.”            J.A.       249.       Plaintiffs      declined     the    court’s

invitation to amend the CAC and instead timely filed a notice of

appeal.      We    have       jurisdiction         over   final    judgments     of   the

district court pursuant to 28 U.S.C. § 1291. 3

     After        filing          their      appeal,       Plaintiffs      moved      for

reconsideration by the district court under Rule 60(b)(1) of the

Federal   Rules        of    Civil       Procedure,    arguing     that   the   district

court’s initial order rested upon a mistake of law. 4                      Although we



     3
       Under the final order doctrine, we may take jurisdiction
over a case dismissed for failure to state a claim only if “the
grounds for dismissal clearly indicate that ‘no amendment in the
complaint could cure the defects in the plaintiff's case.’”
Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d
1064, 1067 (4th Cir. 1993) (brackets omitted).        Dismissals
without prejudice are generally not appealable final orders.
De’lonta v. Johnson, 708 F.3d 520, 523 n.2 (4th Cir. 2013). But
if, as here, a plaintiff declines the district court’s offer to
amend and chooses to stand on his or her complaint, the
plaintiff “waive[s] the right to later amend unless we determine
that the interests of justice require amendment.”       Chao v.
Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir. 2005).
Because of Plaintiffs’ waiver, we treat this case as if it had
been dismissed with prejudice and therefore have jurisdiction
over this appeal.
     4
       The Rule reads, in relevant part: “On motion and just
terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect[.]”   Fed. R. Civ.
P. 60(b)(1).



                                              10
held in United States v. Williams, 674 F.2d 310, 313 (4th Cir.

1982), that Rule 60 does not authorize motions for correction of

a mistake of law, the district court elected not to deny the

motion on this ground and instead responded to the substance of

the motion.     In its order (“the September Order”), the district

court   reiterated     the     reasons       stated    in   its     initial    order

dismissing the CAC and added one additional reason: It is unfair

to consumers who wish to gamble that glucosamine and chondroitin

may be effective if lay juries can effectively ban the sale of

glucosamine and chondroitin simply because the evidence of their

effectiveness    is    inconclusive.              Plaintiffs   did    not     file    a

separate notice of appeal with respect to the September Order.

However, they now purport to appeal both the initial order and

the September Order.



                                           II.

     As a threshold matter, we must determine whether we have

jurisdiction    to    consider       Plaintiffs’      purported   appeal      of     the

September   Order.      Rule     3    of    the   Federal   Rules    of   Appellate

Procedure requires would-be appellants to timely file a notice

of appeal with the Court “designat[ing] the judgment, order, or




                                           11
part thereof being appealed.” 5            Fed. R. App. P. 3(c)(1)(B).         In a

civil case in which the federal government is not a party, a

notice of appeal is timely if filed within 30 days after entry

of judgment.        Fed. R. App. P. 4(a)(1).            Plaintiffs timely filed

a notice of appeal following the district court’s dismissal of

the CAC, but did not file an amended notice of appeal or a new

notice of appeal within 30 days of the entry of the September

Order.      They     now       contend—without    the   benefit     of    authority,

binding or otherwise—that it would be unfair for this Court to

require the filing of a separate notice of appeal following the

denial of a post-judgment motion.

       Plaintiffs are apparently unaware of the generous tolling

provisions     of       Rule     4   of   the   Federal     Rules    of    Appellate

Procedure, which provides a clear road map for appellants who

wish   to   file    a    post-judgment      motion   with    the    district   court

before taking their appeal.               Appellants who file a motion for

reconsideration within 28 days following the district court’s

entry of judgment may wait to file their notice of appeal until

after the disposition of the Rule 60 motion, because the timely

       5
       The timely filing of a notice of appeal is not merely a
matter of clerical convenience.     Rather, it is “an event of
jurisdictional significance—it confers jurisdiction on the court
of appeals and divests the district court of its control over
those aspects of the case involved in the appeal.”     Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per
curiam).



                                           12
filing    of     the    Rule    60    motion     tolls        the   time     for    filing   an

appeal.        Appellants who miss this 28-day deadline can still file

separate notices of appeal within 30 days of each challenged

order    and     then    consolidate        the       appeals.         Fed.    R.    App.    P.

4(a)(4)(A)(vi)&(B); see also Fobian v. Storage Tech. Co., 164

F.3d 887, 891 (4th Cir. 1999) (noting that “any appeal from the

denial” of a Rule 60 motion “can be consolidated with the appeal

from the underlying order”); 16A Charles Alan Wright & Arthur R.

Miller et al., Federal Practice and Procedure, § 3950.4 (4th ed.

2008).

    Plaintiffs filed their Rule 60 motion 35 days after the

entry of judgment, too late to take advantage of Rule 4 tolling.

They also failed to file a separate notice of appeal from the

September Order.           We therefore grant the Companies’ motion to

dismiss the appeal of the September Order for want of appellate

jurisdiction.



                                            III.

                                                A.

         “We    review     de    novo      an        appeal    from    a     Rule    12(b)(6)

dismissal,        accepting          the   complaint           as     true    and     drawing

reasonable inferences in the [plaintiffs’] favor.”                                 Summers v.

Altarum Inst., Corp., 740 F.3d 325, 328 (4th Cir. 2014).                                 Rule

8(a)(2) of the Federal Rules of Civil Procedure requires that a

                                                13
complaint    contain   “a   short      and   plain    statement    of    the    claim

showing that the pleader is entitled to relief.”                     Fed. R. Civ.

P. 8(a)(2).     “[T]he pleading standard Rule 8 announces does not

require ‘detailed factual allegations,’ but it demands more than

an            unadorned,                the-defendant-unlawfully-harmed-me

accusation.”        Ashcroft     v.    Iqbal,   556    U.S.   662,      678    (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

To “state a claim to relief that is plausible on its face,” a

plaintiff must “plead factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.”         Id.



                                        B.

     In order to state a plausible claim for relief under all of

the state consumer protection statutes specified in the CAC,

Plaintiffs must plead facts from which we might infer that the

representations      made   on   the    products’      packaging      were     false,

deceptive,     or   misleading. 6        The    district      court     held    that


     6
       Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 490
(2d Cir. 2014)(“To state a claim under [New York] GBL § 349, a
plaintiff ‘must prove three elements: first, that the challenged
act or practice was consumer-oriented; second, that it was
misleading in a material way; and third, that the plaintiff
suffered injury as a result of the deceptive act.’”      (quoting
Stutman v. Chem. Bank, 95 N.Y.2d 24, 29 (2000))); Virgilio v.
Ryland Grp., Inc., 680 F.3d 1329, 1338 n.25 (11th Cir. 2012) (“A
consumer claim for damages under [Florida’s] FDUTPA has three
(Continued)
                                        14
Plaintiffs have failed to satisfy this minimal pleading burden.

For the reasons that follow, we agree.



                               1.

     The district court held that “[i]f there are experts who

support what [the Companies] say in their advertisements, the




elements: (1) a deceptive act or unfair practice; (2) causation;
and (3) actual damages.”); McKinney v. Bayer Corp., 744 F. Supp.
2d 733, 753 (N.D. Ohio 2010) (“To state a claim for breach of
warranty under the [Ohio] UCC, a plaintiff must allege: (1) the
existence of a warranty; (2) the product failed to perform as
warranted; (3) the plaintiff provided the defendant with
reasonable notice of the defect; and (4) the plaintiff suffered
an injury as a result of the defect.”); Engel v. Novex Biotech
LLC, No. 14-cv-03457-MEJ, 2014 WL 5794608, at *2 (N.D. Cal. Nov.
6, 2014) (“In an action for false advertising under the
[California] UCL and CLRA, the plaintiff bears the burden of
proving   the   defendant’s  advertising   claim   is   false   or
misleading.” (internal quotation marks omitted)); De Bouse v.
Bayer AG, 235 Ill. 2d 544, 550, (2009) (“A[n Illinois] Consumer
Fraud Act claim requires (1) a deceptive act or practice by the
defendant, (2) the defendant's intent that the plaintiff rely on
the deception, (3) the occurrence of the deception in a course
of conduct involving trade or commerce, and (4) actual damage to
the plaintiff that is (5) a result of the deception.”);
Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 122 (2014) (“An
unlawful   practice   under  the   [New   Jersey]   CFA   requires
‘fraudulent, deceptive or other similar kind of selling or
advertising practices.’” (quoting Daaleman v. Elizabethtown Gas
Co., 77 N.J. 267, 271 (1978))); Koch v. Acker, Merrall & Condit
Co., 18 N.Y.3d 940, 941 (2012) (per curiam) (“To successfully
assert a claim under [New York] General Business Law § 349(h) 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.’” (quoting City of N.Y. v.
Smokes-Spirits.Com, Inc., 12 N.Y.3d 616, 621 (2009))).



                               15
advertisements are not false and misleading . . . .”                  J.A. 248.

The district court clarified that Plaintiffs should not amend

the CAC unless they can plead that “any reasonable expert would

conclude from the cited studies that glucosamine and chondroitin

do not improve joint health in non-arthritic consumers.”                     J.A.

249.       The district court’s test—while incorrect in its specific

formulation—accurately summarizes the law of false advertising. 7

       The federal Lanham Act creates a private right of action

for corporate victims of “false or misleading” descriptions or

representations.       15 U.S.C. § 1125(a).         Although consumers (such

as   Plaintiffs)      cannot   invoke     the   protections    of    the   Lanham

Act, Lexmark Int’l, Inc. v. Static Control Components, Inc., 134

S.   Ct.     1377,   1390   (2014),    the    considerable    body   of    federal

common law construing the Act is instructive in construing the

state laws at issue here.             Courts uniformly interpret “false or


       7
       The district court’s reference to the specific studies
cited in the CAC is error.        Under Twombly and Iqbal, “a
plaintiff need not ‘forecast’ evidence sufficient to prove the
elements of the claim.”   Walters v. McMahen, 684 F.3d 435, 439
(4th Cir. 2012) (quoting Robertson v. Sea Pines Real Estate
Cos., 679 F.3d 278, 291 (4th Cir. 2012)).     While the studies
cited in the CAC are statements of fact that may collectively
“raise a right to relief above the speculative level,” Twombly,
550 U.S. at 555, they do not comprise the full body of evidence
that the factfinder would ultimately consult to determine
liability. As will be developed below, the question of falsity
hinges on the existence (or not) of scientific consensus and not
on the conclusions that hypothetical scientists might draw from
those studies referenced in the CAC.



                                         16
misleading” as creating two different theories of recovery in a

false advertising claim: A plaintiff must allege either (i) that

the challenged representation is literally false or (ii) that it

is    literally         true     but          nevertheless       misleading.                    See,

e.g., Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134,

1139 (9th Cir. 1997); BASF Corp. v. Old World Trading Co., 41

F.3d 1081, 1089 (7th Cir. 1994); Castrol Inc. v. Pennzoil Co.,

987 F.2d 939, 943 (3d Cir. 1993); see also 44 Am. Jur. Proof of

Facts   3d     1,     § 8   (2015)        (collecting      cases).              A    Lanham      Act

plaintiff       arguing     that      a       representation     is        misleading           must

produce extrinsic evidence of actual consumer confusion—it is

not   enough     for    a   court      to      determine      after       the       fact    that   a

representation              could               have          misled                hypothetical

consumers.       See Scotts Co. v. United Indus. Corp., 315 F.3d 264,

272–73 (4th Cir. 2002).                   However, a plaintiff arguing literal

falsity need not produce such evidence. Id.                          If a representation

is    false,    we     assume    as       a    matter    of    law     that         it     is   also

misleading.

       In construing the diverse state statutes at issue here, we

apply    this       broadly     shared         understanding         of     the       difference

between false and misleading representations.                             Every statute at

issue   here     imposes       liability         for    misleading         representations.

Although       each    state    supplies          its   own     test       for       determining



                                                17
whether         true    statements    are    misleading, 8         statements    that    are

literally false are necessarily misleading within the meaning of

all of the statutes.                 Crucially, Plaintiffs have consistently

argued below and on appeal that the challenged representations

are false and that the challenged products are ineffective.                              The

CAC nowhere alleges, and Plaintiffs have at no time argued, that

any of the representations are literally true but misleading.

       Because          Plaintiffs   elected        to   plead     that   the   Companies’

representations are false rather than true but misleading, we

must determine whether the CAC states facts showing that the

representations are literally false.                       Plaintiffs’ theory of the

case       is    a     syllogism:    (i)    the     Companies      represent     that    the

products         improve    joint    health;        (ii)   scientific      evidence     will

show       that      glucosamine     and    chondroitin       do    not    improve     joint

health          more     than   a    placebo        would;   (iii)        therefore,    the

representations must be false because the products do not and

cannot improve joint health.                   However, the CAC does not allege


       8
       See, e.g., Oliveira v. Amoco Oil Co., 201 Ill.2d 134, 155
(2002) (“[A] plaintiff must allege that he was, in some manner,
deceived.”); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 69
(1985) (asking “whether the ad itself is misleading to the
average consumer”); Guggenheimer v. Ginzburg, 43 N.Y.2d 268,
272–73 (1977) (“In weighing a statement's capacity, tendency or
effect in deceiving or misleading customers, we do not look to
the average customer but to the vast multitude which the
statutes were enacted to safeguard including the ignorant, the
unthinking and the credulous . . . .”).



                                               18
that all scientists agree that glucosamine and chondroitin are

ineffective    at     providing     the      promised       joint      health    benefits.

Rather, it alleges that “the vast weight of competent clinical

evidence,”     J.A.     33,   and      the        “overwhelming        weight        of    high

quality, credible and reliable studies,” J.A. 35, support this

finding.      Plaintiffs thereby concede that, although most duly

qualified    scientific       experts        may    agree      that    glucosamine          and

chondroitin    are    ineffective,         some      reasonable        experts       disagree

and believe that glucosamine and chondroitin can provide the

symptom    relief     promised    by    the        Companies.          In    other        words,

contrary to the second prong of Plaintiffs’ own syllogism, the

CAC alleges that the scientific evidence regarding the efficacy

of glucosamine and chondroitin is equivocal.                            Plaintiffs have

therefore failed to allege that the challenged representations

are literally false.

     Plaintiffs urge that it is inappropriate for the court to

resolve a “battle of the experts” on the pleadings.                            However, we

need not resolve any “battle of the experts” in order to decide

whether the CAC states a claim for false advertising.                                      When

litigants     concede     that      some      reasonable        and     duly     qualified

scientific    experts     agree     with      a    scientific         proposition,          they

cannot also argue that the proposition is “literally false.”

Either the experts supporting the Companies are unreasonable and

unqualified    (in    which    case,       there     is   no    real        battle    of    the

                                             19
experts to begin with) or they reflect a reasonable difference

of    scientific      opinion       (in        which      case      the         challenged

representations      cannot   be    said       to    be   literally           false).     By

characterizing       the   dispute        as     a   battle        of     the      experts,

Plaintiffs    highlight    the     CAC’s        concession       that     a     reasonable

difference     of     scientific      opinion          exists       as        to    whether

glucosamine    and    chondroitin     can       provide     the     advertised          joint

health benefits.

      Plaintiffs also object that our holding today would “permit

a manufacturer of the most dubious product to engage an ‘expert’

and then contend it was immune from a consumer fraud action.”

Appellants’ Br. at 18.             However, plaintiffs who believe that

no   reasonable      scientist      would        agree      with        the     challenged

representations remain free to make that allegation.                                 Having

done the due diligence required by Rule 11 of the Federal Rules

of   Civil   Procedure,    they    need        not   fear   that        the    defendant’s

subsequent production of a surprise expert whose opinion is not

reflected in the published scientific literature would expose

them to Rule 11 sanctions. 9          See Morris v. Wachovia Sec., Inc.,

      9
       The label of TriFlex Fast-Acting references such a private
study.   Although Plaintiffs were free to allege that the study
cannot have been conducted in a reasonable or reliable way
(because    all   reasonable   experts    support  the   opposite
conclusion), they failed to do so.     We decline to speculate as
to why, if the evidence is as clear and univocal as they claim,
Plaintiffs exhibited such hesitation.


                                          20
448 F.3d 268, 278 (4th Cir. 2006) (noting that Rule 11(b) is

violated     only    when     a    party       has   no    factual     basis   for     an

allegation in a signed pleading).                    Moreover, plaintiffs remain

protected from dubious experts by the Federal Rules of Evidence,

which “ensure that any and all scientific testimony . . . is not

only relevant, but reliable.”                  Cooper v. Smith & Nephew, Inc.,

259 F.3d 194, 199 (4th Cir. 2001) (quoting Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579, 588 (1993)).

       Our holding today should not be interpreted as insulating

manufacturers       of    nutritional      supplements        from     liability      for

consumer fraud.          A manufacturer may not hold out the opinion of

a minority of scientists as if it reflected broad scientific

consensus.      Nevertheless, we need not decide today whether any

of   the   representations         made    on    the      Companies’    products      are

misleading,     because       Plaintiffs         chose     not   to     include      such

allegations in the CAC.

       In sum, we hold that in order to state a false advertising

claim on a theory that representations have been proven to be

false, plaintiffs must allege that all reasonable experts in the

field agree that the representations are false.                         If plaintiffs

cannot do so because the scientific evidence is equivocal, they

have   failed   to    plead       that   the    representations        based   on    this

disputed scientific evidence are false.



                                           21
                                          2.

      The CAC is also defective because it fails to allege that

all of the ingredients contained in the products are incapable

of providing the represented benefits.                  This defect presents an

alternate ground for affirming the district court.

      The    CAC       alleges    that    according      to        most     scientists,

glucosamine      and    chondroitin,      MSM,    and   HA    do    not    provide    the

benefits represented on the products’ packaging.                          However, most

of    the   products      cited   in     the    complaint      contain        additional

ingredients.       All of the GNC products allegedly purchased by the

named plaintiffs contain ingredients not referenced in the CAC,

including white willow bark extract, hops cones extract, Chinese

skullcap    root    extract,      and    fish    oil.    All       of   the    Rite   Aid

products allegedly purchased by named plaintiffs except for Rite

Aid    Natural     Glucosamine/Chondroitin          also       contain        additional

ingredients.       Plaintiffs conceded before the district court that

the CAC does not “specifically address” what they refer to as

the “minor ingredients” in the products. 10                  J.A. 125.


      10
        Despite this earlier concession, Plaintiffs represented
to this Court that “[t]he CAC . . . alleges that all of the
ingredients in Defendants’ products have been proven . . . to be
ineffective” and that “the cited studies . . . include all of
the ingredients in Defendants’ products.” Appellants’ Reply Br.
(Continued)
                                          22
    Most of the challenged representations—including “supports

improved joint health,” “protects joints,” “joint comfort,” and

“rebuilds cartilage”—refer to the products as a whole. 11                 The

products, except for Rite Aid Natural Glucosamine/Chondroitin,

contain   herbal   compounds    that    ostensibly   contribute    to   joint

health and comfort.        To the extent that Plaintiffs failed to

allege that all of the purportedly active ingredients in each

product are ineffective at promoting joint comfort, health, and

flexibility, they have failed to adequately plead falsity of the

representations regarding the products as a whole.                See Toback

v. GNC Holdings, Inc., No. 13-80526-CIV, 2013 WL 5206103, at *5

(S.D. Fla. Sept. 13, 2013) (“Plaintiff’s allegations regarding

the inefficacy of glucosamine and chondroitin simply fail to

address   the   efficacy   of   the     TriFlex   Vitapak’s   multifarious




1, 8 (emphasis added). Plaintiffs’ counsel is reminded “that a
lawyer’s duty of candor to the court must always prevail in any
conflict with the duty of zealous advocacy.”     U.S. Dep’t of
Hous. & Urban Dev. v. Cost Control Mktg. & Sales Mgmt. of Va.,
Inc., 64 F.3d 920, 925 (4th Cir. 1995).
    11
        GNC TriFlex Complete Vitapak represents on the side of
the package and in small print that “[g]lucosamine and
chondroitin help preserve joint function and rebuild cartilage.”
J.A. 189. GNC TriFlex Fast-Acting represents, in small print on
the side of the package, that “[s]cientific research has shown
that these building block compounds [i.e., glucosamine and
chondroitin] help to support the body’s natural ability to
regenerate cartilage and lubricate joints thus supporting joint
health integrity and function.” J.A. 193.



                                       23
composition in promoting joint health, and thus fail to raise

Plaintiff’s claim, that the Vitapak as a whole does not function

as     advertised,          above     the        speculative               level.”     (emphasis

added)); McCrary            v.    Elations       Co.,    LLC,        No.    EDCV     13–0242      JGB

(OPx),       2013    WL    6402217,        at    *5     (C.D.      Cal.      Apr.     24,    2013)

(dismissing         claims       regarding       the        overall        formulation       of     a

supplement          when    plaintiff           provided        no     scientific           studies

regarding several of the purportedly active ingredients).

       We therefore affirm the dismissal of all claims regarding

the    overall      formulation       of    all       products       except     for    Rite       Aid

Natural Glucosamine/Chondroitin on the alternate ground that the

CAC    does      not       allege    that        the     products’           ingredients          are

ineffective as marketed.



                                                 3.

       The Companies also argue that the studies cited in the CAC

are    not     specific      enough        to    raise       any     plausible        inferences

regarding the efficacy of the challenged products.                                 We find this

line    of    reasoning          unpersuasive         and    inconsistent           with    notice

pleading under Twombly and Iqbal.

       First,       the    Companies       argue       that     because       the     scientific

studies cited in the CAC concerned patients with osteoarthritis,

their findings are inapplicable to people without arthritis who

experience joint pain and stiffness.                         Plaintiffs respond that we

                                                 24
must take as true the CAC’s allegation that “experts in the

field deem [clinical studies conducted on arthritic patients] to

be appropriate proxies for whether the ingredients are effective

. . . for both arthritic and non-arthritic users.”                           J.A. 23 n.5.

Plaintiffs further note that the symptoms of arthritis assessed

in     the     studies—joint       stiffness,            pain,     and    discomfort—are

precisely the symptoms that the products purport to remedy.                               For

example,       the     CAC      cites    one       study      that       concluded       that

“glucosamine and chondroitin, alone or in combination, did not

reduce joint pain . . . compared with a placebo,” and another

that found that “glucosamine and chondroitin did not rebuild

cartilage.”          J.A. 37–38.        It may well be that glucosamine and

chondroitin work differently in people with arthritis than in

people       without    arthritis,      but    such      a   factual     dispute    is    not

susceptible to resolution at the motion-to-dismiss stage.

       Second,       the    Companies    argue      that     the    scientific      studies

cited in the CAC are insufficient evidence of falsity because

they    did     not    assess    the    specific         formulations        used   in    the

products       or     the    synergistic       effects       between      the   products’

ingredients.           They    argue    that       the    studies      are   inapplicable

because they considered different amounts and combinations of

glucosamine and chondroitin.                   Again, however, our inquiry at

this stage is limited to the plausibility of the CAC and not the

ultimate truth of its allegations: The applicability of a study

                                              25
regarding      different    dosages     of       the   same      ingredients    to    the

products    at    issue    is   not    susceptible          to    resolution    at    the

motion-to-dismiss       stage.        See    Quinn     v.   Walgreen    Co.,    958    F.

Supp. 2d 533, 544 (S.D.N.Y. 2013); Pearson v. Target Corp., No.

11 CV 7972, 2012 WL 7761986, at *2 (N.D. Ill. Nov. 9, 2012)

(“[W]hether or not the proffered studies are applicable to Up &

Up Triple Strength is a question of fact that I do not decide at

this stage.       The fact that these studies looked at products that

shared the same active ingredients-Glucosamine, Chondroitin, and

MSM-makes        Plaintiff's      claim          facially         plausible.”);       see

also   Jovel     v.   i-Health,   Inc.,          No.   12-CV-5614     (JG),    2013    WL

5437065, at *9 (E.D.N.Y. Sept. 27, 2013).                        We therefore decline

to adopt these grounds for affirming the district court’s order.



                                         IV.

       For the foregoing reasons, we hold that the CAC fails to

state a claim upon which relief can be granted.                       The judgment of

the district court is therefore

                                                                              AFFIRMED.




                                            26
