## Facts

- Ramona Jasper bought “FitMiss Fat-Burning” dietary supplements manufactured and sold by MusclePharm Corporation.
- According to the complaint, the product label and related marketing represented that FitMiss would burn fat and cause rapid weight loss, including “visible changes in less than two weeks,” and contained “clinically tested ingredients.”
- Jasper alleged she used the product as directed but did not experience weight loss or fat-burning effects.
- Jasper filed a putative class action asserting that the label statements were false and misleading and seeking relief under multiple legal theories, including a claim under the Magnuson–Moss Warranty Act (MMWA) based on the theory that the challenged statements were “written warranties.”
- MusclePharm moved to dismiss the MMWA claim, arguing that the MMWA does not apply to written warranties whose making or content is already governed by federal law, and that dietary-supplement labeling is governed by the Food, Drug, and Cosmetic Act (FDCA) and FDA regulations.
- Jasper argued that the MMWA still applied to some FitMiss labeling but did not identify which specific statements, if any, fell outside FDCA/FDA regulation.
- A magistrate judge recommended dismissal of the MMWA claim. Neither party filed objections to that recommendation.

## Issues

1. Whether the MMWA applies to alleged written warranties arising from dietary-supplement labeling and marketing when the making or content of those statements is governed by the FDCA and FDA regulations, and the plaintiff does not identify any separate, non-FDCA-governed warranty statements.

## Decision

- The district court reviewed and affirmed the magistrate judge’s recommendation.
- The court granted the Rule 12(b)(6) motion as to the MMWA count and dismissed the MMWA claim.
- Because neither party objected to the report and recommendation, the court adopted it as the court’s order after its review.

## Legal Principles

- The MMWA is “inapplicable to any written warranty the making or content of which is otherwise governed by Federal law.” 15 U.S.C. § 2311(d).
- When the alleged warranty statements arise from labeling and marketing that federal law already regulates (here, dietary-supplement labeling under the FDCA and FDA rules), an MMWA claim based on those statements is barred by § 2311(d).
- A plaintiff attempting to proceed under the MMWA despite FDCA regulation must plausibly identify the specific warranty statements alleged to fall outside the FDCA/FDA regulatory scheme; a general assertion that “some” statements are outside the scheme is not enough to state an MMWA claim.
- When no timely objections are filed to a magistrate judge’s recommendation on a dispositive motion, the district court may adopt the recommendation after appropriate review and enter an order consistent with it.

## Conclusion

In *Jasper v. MusclePharm Corp.*, the District of Colorado dismissed Jasper’s Magnuson–Moss Warranty Act claim at the pleading stage because the alleged written warranties were based on FitMiss dietary-supplement labeling and marketing whose making or content was governed by the FDCA and FDA regulations, and Jasper did not identify any specific warranty statements that were outside that federal regulatory framework.


Jasper v. MusclePharm Corp., 2015 WL 2375945 (2015)