CHESLER, District Judge

NOT FOR PUBLICATION

OPINION

CHESLER , District Judge

This matter comes before this Court on the motion to dismiss the Amended Complaint for failure to state a valid claim for relief, pursuant to Federal Rule of Civil Procedure 12(b)(6), by Defendant Bayer Healthcare LLC ("Bayer"). Plaintiffs John Gaul, Barbara Broking, and Kirsten Arentzen (collectively, "Plaintiffs") have opposed the motion. For the reasons stated below, the motion will be granted.

As discussed in this Court's Opinion entered February 11, 2013, which granted Bayer's first motion to dismiss the Complaint, the gist of this case is the claim that Bayer deceived consumers with false advertising for a calcium supplement product, Citracal SR. This Court found that the Complaint failed to state sufficient facts to make plausible the asserted claims, and granted Plaintiffs leave to file an Amended Complaint, which they did. Bayer has now moved to dismiss the Amended Complaint. As before, inter alia, Bayer contends that Plaintiffs fail to state any valid claims because they have failed to plead sufficient facts to support their claims that Bayer's statements about Citracal SR are false.

A complaint will survive a motion under Rule 12(b)(6) only if it states "sufficient factual allegations, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). The pleading standard imposed by Federal Rule of Civil Procedure 8(a) will be met if the complaint "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556.) While the complaint need not demonstrate that a defendant is probably liable for the wrongdoing, allegations that give rise to the mere possibility of unlawful conduct will not do. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 557.

The Amended Complaint asserts, as before, four claims: 1) violation of the New Jersey Consumer Fraud Act ("NJCFA"); 2) unjust enrichment; 3) breach of express warranty; and 4) breach of implied warranty of merchantibility. To support the allegation that Bayer's advertising and labeling for Citracal SR was false, the Complaint relied on two factual assertions: 1) scientific research studies have proven that calcium citrate provides superior bioavailability relative to calcium carbonate, the calcium source in Citracal SR; and 2) the National Advertising Division of the Better Business Bureau published a report on June 29, 2012 (the "NAD Report"), which stated that the sole study which Bayer had offered to support its labeling claims was unreliable.

The Amended Complaint adds detail about the NAD Report, as well as a new theory, with some factual allegations, that Citracal SR cannot be effective because it triggers the body's "inhibitory feedback mechanism that actually prevents absorption." (Am. Compl. ¶ 46.) This Court finds that the Amended Complaint still fails to state sufficient facts to make plausible claims that Bayer's advertising and labeling are false.

In deciding the previous motion to dismiss, this Court had considered the NAD Report in its entirety. "A court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Miller v. Clinton County, 544 F.3d 542, 550 (3d Cir. 2008). Even though the Amended Complaint adds more detail from the NAD Report, this adds nothing to the factual support for the fraud claims that this Court has already considered. The NAD Report still concludes that "the advertiser's evidence is not sufficiently reliable to provide a reasonable basis in support of its claims." (NAD Report at 20.) As stated before, this tends to prove that Bayer's claims are unsupported, but not that they are false.

In terms of factual support for the claim of falsity, all that is new in the Amended Complaint is the theory of the body's inhibitory feedback mechanism, and the factual allegations with it. The Amended Complaint asserts, in summary: "Citracal SR's 'slow-release' technology is fundamentally flawed because the body's calcium channels become saturated in the presence of continuous calcium, which produces an inhibitory feedback mechanism that actually prevents further uptake or absorption of calcium." (Am. Compl. ¶ 44.) In support, the Amended Complaint cites these statements from the New York Department of Health:

It is also important not to consume too much calcium at one time. For the most efficient calcium absorption, it is best to consume calcium (from food and/or supplements) in amounts of 600mg or less at one time. Your body uses calcium best when it is spread out through the day.

Calcium supplements usually come in 500- to 600-mg tablets. You don't absorb large doses of calcium as efficiently as you do small ones. Thus, much of a 1,000-mg tablet is going to waste . . .

It is puzzling that Plaintiffs offer these factual assertions to support their case, since they appear to bolster Bayer's claims. If it is true that the body uses calcium best when it is spread out through the day, would that not point to the value of a calcium supplement that releases the calcium more slowly, rather than more quickly? If it is true that the body does not absorb large doses of calcium as efficiently as small ones, would that not suggest a benefit from a calcium supplement that releases the calcium more slowly? In line with these points, would this not support the value of using a form of calcium that is absorbed more slowly, like calcium carbonate, rather than one that is absorbed more quickly, like calcium citrate? In short, these factual assertions do not support Plaintiffs' contention that Bayer's claims are false. If anything, they support a very different proposition, that Bayer may have designed Citracal SR so as to have improved effectiveness because of the way the body absorbs calcium.

The Amended Complaint also asserts that Citracal SR is "fundamentally flawed" because "products like Citracal SR unnecessarily maintain the absorption capabilities of the intestine in the 'off' position, such that little to no calcium is actually absorbed." (Am. Compl. ¶ 58.) The Amended Complaint contains no factual support for this assertion. The cited statements from the New York Department of Health and the Harvard Health Letter do not say anything about the intestine having an 'off' position, nor do they suggest that the body shuts down calcium absorption due to calcium saturation. Nor is there any factual basis offered for the suggestion that Citracal SR saturates the body's calcium channels at any point. The Amended Complaint fails to provide any actual support for the inhibitory feedback mechanism theory. In turn, lacking supporting factual allegations, the inhibitory feedback mechanism theory fails to make plausible Plaintiffs' claims that Bayer's representations are false. Lacking any foundation in factual allegations, it is pure speculation.

With this background, this Court now turns to Plaintiffs' arguments in opposition to Bayer's contention that the Amended Complaint fails to provide sufficient factual allegations to make plausible a consumer fraud claim. First, Plaintiffs address Bayer's advertising claim that Citracal SR provides "unsurpassed absorption," contending that the factual allegation that scientific studies establish the superior bioavailability of calcium citrate over calcium carbonate makes that claim plausible. It does not. The problem for Plaintiffs is that the Amended Complaint identifies Citracal SR as a supplement offering a "slow release" of calcium carbonate. General research on calcium carbonate is irrelevant to the question of whether the absorption of the "slow release" calcium carbonate in Citracal SR is surpassed by any other product. Since Plaintiffs' claims in this case focus on calcium absorption, and Plaintiffs allege that Bayer's product claims to use a form of calcium that affects absorption, comparisons that do not include that exact form of calcium are irrelevant. There is no factual basis in the Amended Complaint to support the claim that "unsurpassed absorption" is false. Rather, as already discussed, if it true that the body absorbs calcium better when it is spread out through the day, it is plausible that a slow release method is not inferior.

Plaintiffs next contend that the Amended Complaint provides sufficient factual assertions to make plausible the assertion that "the human body is incapable of absorbing a continuous stream of calcium." (Pls.' Opp. Br. 10.) In support, Plaintiffs point to this assertion in the Amended Complaint: "as the amount increases, studies have shown the percentage absorption decreases." (Am. Compl. ¶ 56.) To support this assertion, the Amended Complaint cites the statements from the New York Department of Health, quoted above. This is unpersuasive. The quoted statements do not provide factual support for the assertion that "the human body is incapable of absorbing a continuous stream of calcium." There is no factual basis in the Amended Complaint to support any inferences about what the limits of human calcium absorption capacity are, or about how Citracal SR delivers its calcium - whether instantaneously or spread over days - or about how the body responds to Citracal SR. Again, no factual allegations in the Amended Complaint make these assertions plausible.

Lastly, Plaintiffs argue that Bayer's own study proved that Citracal SR was less effective than competing supplements. This issue has already been dealt with; this conclusion is not supported by the facts alleged.

The Amended Complaint fails to allege sufficient facts to make Plaintiffs' NJCFA claim plausible. As to the NJCFA claim, the motion to dismiss will be granted.

The remaining three claims in the Amended Complaint differ in their legal theories, but all three rely on a core finding that Bayer made misrepresentations in its advertising and labeling for Citracal SR. Because this Court has determined that the Amended Complaint fails to state sufficient facts to make plausible the claim that Bayer made such false statements, these claims are not viable and cannot survive the motion to dismiss.

This is now the second time that this Court has granted Defendants' motion to dismiss in its entirety. The Supreme Court has characterized dismissal with prejudice as a "harsh remedy." New York v. Hill, 528 U.S. 110, 118 (2000). Dismissal of a count in a complaint with prejudice is appropriate if amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). This Court concludes that Plaintiffs are unable to provide any further factual allegations to support their claims, and that further amendment of the Amended Complaint is futile. The motion to dismiss will be granted in its entirety, and the Amended Complaint will be dismissed with prejudice.

s/Stanley R. Chesler

STANLEY R. CHESLER, U.S.D.J. Dated: June 19, 2013