IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

STATE OF OREGON, 

Plaintiff, 

v. 

GENERAL NUTRITION CORPORATION, 

Defendant. 

PAP AK, Magistrate Judge: 

3:15-CV-2006-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff the State of Oregon (the "State") filed this action against defendant General 

Nutrition Corporation ("GNC") in the Multnomah County Circuit Court on October 22, 2015. 

By and through its complaint, the State alleges that GNC improperly and willfully represented 

that various products GNC sold in Oregon were "lawful dietaiy supplements" notwithstanding 

GNC's actual or constructive knowledge that these products contained N-nicotinoyl-GABA 

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("picamilon") and/or ll-Methylphenethylamine ("BMPEA"), neither of which (according to the 

State) is or may lawfully be included in a dietmy supplement under federal law. Arising out of 

that conduct, the State alleges GNC's liability under Oregon's Unlawful Trade Practices Act (the 

"UTPA") in four claims comprising a total of seventeen counts. Specifically, the State alleges 

GNC's liability under Or. Rev. Stat. 646.608(l)(e) (an unlawful trade practice to represent that 

goods have approval, characteristics, uses, benefits, or qualities that they do not in fact have) in 

six counts, under Or. Rev. Stat. 646.608(l)(g) (an unlawful trade practice to represent that a 

product is of a particular standard, quality, or grade if it is of another) in four counts, under Or. 

Rev. Stat. 646.608 (an unlawful trade practice to cause likelihood of confusion or of 

misunderstanding as to the approval or certification of goods) in four counts, and under Or. Rev. 

Stat. 646.607(1) (an unlawful trade practice to engage in any unconscionable tactic in connection 

with the sale of goods) in three counts. The State's complaint expressly references the federal 

Food, Drug and Cosmetic Act (the "FDCA" or the "Act"), 21 U.S.C. § 301 et seq., in particular 

21 U.S.C. § 32l(ff) (defining the term "dieta1y supplement" for FDCA purposes), in support of 

its allegation that picamilon and BMPEA may not lawfully be included in a dietmy supplement 

under federal law. See Complaint,~~ 15, 19, 20, 28, 34, 37. 

On October 23, 2015, GNC removed the State's action to this court on the purp01ied 

grounds of both federal-question and diversity jurisdiction. Briefly, it is GNC's theo1y that 

because the State references federal law in support of the proposition that neither picamilon nor 

BMPEA may lawfully be included in a dietary supplement, the State's causes of action must 

necessarily arise under the laws of the United States, giving rise to federal-questionjurisdiction, 

and that because the State has no authority to enforce the FDCA, this action is not brought by the 

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State but rather by the State's Attorney General in her personal capacity only, which (together 

with the amount in controversy and the fact that GNC is a Pennsylvania corporation 

headquartered in Pennsylvania) gives rise to diversity jurisdiction (which cannot exist where a 

state is a party). The State challenges GNC's theory of both federal-question and diversity 

jurisdiction. 

Now before the court is the State's motion (#6) for remand of this action to the 

Multnomah County court for lack of federal subject-matter jurisdiction. I have considered the 

motion, oral argument on behalf of the parties, and all of the papers and pleadings on file. For 

the reasons set forth below, the State's motion for remand should be granted, and this action 

should be remanded to the Multnomah County court where it was originally filed. 

LEGAL STANDARD 

Following a defendant or other party's removal of an action from state to federal court, a 

party opposed to such removal may seek to have the removed case remanded to state court if the 

district court lacks subject-matter jurisdiction over the action notwithstanding its removal, or if 

the removing party's removal procedure was defective. See 28 U.S.C. § 1447(c). If at any time 

prior to final judgment it appears that a federal court lacks subject-matter jurisdiction over a 

removed case, the court must remand the action to state comt. See 28 U.S.C. § 1447(c). By 

contrast, where a patty seeks remand on the basis of defects in removal procedure, the patty 

opposed to removal must move for remand within thirty days following removal. See id. 

The removal statutes are generally construed restrictively, so as to limit removal 

jurisdiction. See Shamrock Oil & Gas Cmp. v. Sheets, 313 U.S. 100, 108-109 (1941); see also, 

e.g., Gaus v. lvfiles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) ("We strictly construe the removal 

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statute against removal jurisdiction") (citations omitted). Cases first filed in state court and then 

removed to federal comi are generally subject to a "strong presumption" against finding removal 

jurisdiction. See Gaus, 980 F.2d at 566; St. Paul 1\;Jercury Indem. Co. v. Red Cab Co., 303 U.S. 

283, 288-292 (1938). The burden of establishing federal subject-matter jurisdiction for purposes 

of removal is on the paiiy seeking removal, see Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 

(9th Cir. 2004), see also Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 

2006), and factual questions regarding the basis for removal are generally to be resolved in favor 

of remanding the case to state cou1i, see lvfatheson v. Progressive Specialty Ins. Co., 319 F.3d 

1089, 1090 (9th Cir. 2003). 

In considering a post-removal challenge to federal subject-matter jurisdiction, the comi 

assumes the truth of the allegations in the complaint and that a jury will ultimately return a 

verdict in the plaintiff's favor on all claims alleged therein. See, e.g., Kenneth Rothschild Trnst v. 

1Worgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C.D. Cal. 2002). In addition, the court 

may consider the contents of the defendant's removal petition, relevant "summary-judgment-type 

evidence" proffered at the time of removal, Valdez, 372 F.3d at 1117, and/or supplemental 

evidence regarding the jurisdictional facts as of the time of removal where such facts are 

proffered at the time federal subject-matter jurisdiction is challenged but can properly be 

construed as amendments to the notice of removal, see Cohn v. Petsmart, Inc., 281F.3d837, 840 

n. 1 (9th Cir. 2002). It is well established that "[c]onclusory allegations" or allegations based on 

"information and belief'' are insufficient to satisfy the defendant's burden to establish federal 

jurisdiction. 1\;Jatheson, 319 F.3d at 1090-1091; Valdez, 372 at 1117. If, after consideration of all 

material allegations and evidence, "doubt regarding the right to removal exists, [the] case should 

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be remanded to state court." 1'Jatheson, 319 F.3d at 1090. 

FACTUAL BACKGROUND1 

Picamilon is a synthetic chemical designed to cross the blood-brain barrier which is a 

prescription neurological medication in some countries but has not been approved for use in the 

United States with or without a prescription. See Complaint, Introduction. BMPEA is a 

positional isomer of amphetamine, with which it shares some properties, that is banned by the 

World Anti-Doping Organization. See id. Neither picamilon nor BMPEA may lawfully be 

included in dietaiy supplements in the United States. See 21 U.S.C. § 32l(ft). Although GNC 

(which both manufactures and sells its own dietary supplements and sells third-party dietaiy 

supplements, see Complaint, iii! 2, 12-16) does not manufacture any products containing 

picamilon or BMPEA, see id., iii! 21, 35, until approximately September 21, 2015, GNC sold 

third-paiiy products labeled as containing picamilon, see id., iii! 30-32, third-paiiy products 

labeled as containing BMPEA, see id., iii! 59-60, and third-paiiy products not labeled as 

containing BMPEA but which neve1iheless contained significant quantities of BMPEA, see id., 

iJiJ 56-58 and 60. At all material times, GNC had actual knowledge that picamilon and BMPEA 

could not lawfully be included as ingredients in a dietaiy supplement sold in the United States, 

and actual or constructive knowledge that the products it sold that were labeled as containing 

"acacia rigidula" were at significant risk of containing BMPEA. See id., iii! 12-16, 22-24, 25-28, 

31, 36-41, 42, 46-50. 

1 Except as otherwise indicated, the following recital of facts reflects my presumption 

that all of the facts alleged in the State's complaint are true and accurate. 

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ANALYSIS 

It is well settled that the propriety of removal and the question of federal jurisdiction 

following removal are to be detennined on the basis of the pleadings filed in state court as of the 

moment removal was effected. See, e.g., Sparta Surgical Corp. v. NASD, 159 F.3d 1209, 1211 

(9th Cir. 1998), citing Lexecon, Inc. v. lvfi/berg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 43 

(1998), Ultramar America Ltd. v. Dwelle, 900 F.2d 1412, 1414 (9th Cir. 1990). Pursuant to 28 

U.S.C. § 1447( c ), the district court must remand a removed case to state court "[i]f at any time 

before final judgment it appears that the district court lacks subject matter jurisdiction[.]" 28 

U.S.C. § 1447(c). 

Here, GNC's theories of federal subject-matter jurisdiction (federal question and 

diversity) both depend necessarily on the proposition that a substantial, contested federal 

question capable of resolution by this court is necessarily raised by the State's express reliance on 

the FDCA definition of "dietmy supplement" in suppo1t of its position that GNC's complained-of 

conduct was unlawful for purposes of its UTPA claims (as noted above, it is GNC's position that 

such reliance directly gives rise to federal-question jurisdiction, and additionally that such 

reliance renders the State's claims in this action de fi1cto efforts to enforce the FDCA, which 

states lack authority to do, such that the real plaintiff in interest must necessarily be Oregon's 

Secretmy of State, giving rise to diversity jurisdiction). Generally, the district courts may not 

assert federal-question jurisdiction over an action in which no federal claim is asserted: 

The presence or absence of federal-question jurisdiction is governed by the 

"well-pleaded complaint rule," which provides that federal jurisdiction exists only 

when a federal question is presented on the face of the plaintiffs properly pleaded 

complaint." Caterpillar [Inc. v. Williams], 482 U.S. [386,) 392[ (1987)) .... The 

well-pleaded complaint rule means that "a case may not be removed to federal 

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court on the basis of a federal defense, including the defense of pre-emption, even 

if the defense is anticipated in the plaintiffs complaint, and even if both patties 

concede that the federal defense is the only question truly at issue." Caterpillar, 

482 U.S. at 393. 

Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 947 (9th Cir. 

2014). "As a general rule, absent diversity jurisdiction, a case will not be removable ifthe 

complaint does not affirmatively allege a federal claim." Id, quoting Beneficial Nat'! Bank v. 

Anderson, 539 U.S. 1, 6 (2003). 

Notwithstanding the foregoing, "a case may arise under federal law 'where the vindication 

of a right under state law necessarily turn[ s] on some constrnction of federal law,"' iV!errell Dow 

Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808-809 (1986), quoting Franchise Tax 

Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1983), although "this statement 

must be read with caution" in that the presence of a federal issue upon the resolution of which the 

asserted state-law cause of action depends does not always give rise to federal-question 

jurisdiction, id. at 809; indeed, the comt quoted with approval Justice Holmes' observation that in 

"[t]he 'vast majority' of cases" of federal-question jurisdiction, a "'suit arises under the law that 

creates the cause of action,"' id at 808, quoting Franchise Tax Board, 463 U.S. at 8-9, 

quoting American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916). The 

1vferrell Dow cou1t specifically held that "when Congress has determined that there should be no 

private, federal cause of action for the violation" of a federal statute, "a complaint alleging a 

violation of [that] federal statute as an element of a state cause of action ... does not state a claim 

'arising under the Constitution, laws, or treaties of the United States."' Id. at 817, quoting 28 

U.S.C. § 1331. Applying that rule to an action stating state-law claims premised in part on the 

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defendant's violation ofFDCA branding rules, and plausibly assuming that there was no federal 

private cause of action under the FDCA for such a violation, 2 the court found that there was no 

federal-question jurisdiction over the action. See id 3 

GNC takes the position that },;Jerrell Dow is not controlling here, apparently because 

lvlerrell Dow specifically addressed FDCA branding rules, which are not implicated by the State's 

claims in this action. However, the ivlerrell Dow comt's reasoning was neither expressly nor 

impliedly limited to the context of state-law claims implicating FDCA branding rules, but rather 

applies on its face whenever the implicated federal statute does not give rise to any private right 

of action. See id. When questioned on this point at oral argument in connection with the State's 

motion, counsel for GNC suggested that the reasoning of 1Vlerrell Dow might be inapplicable 

2 Although the cou1t framed its finding that there was no private right of action to enforce 

the FDCA as an arguendo assumption, see lvlerrell Dow, 478 U.S. at 810, it neve1theless 

provided strong evidence that its assumption was accurate, see id at 810-811. Moreover, as 

discussed below, the Ninth Circuit has more recently affirmed that there is no private right to 

bring an action to enforce the FDCA. 

3 In 2009, the Supreme Court expanded on its discussion of the FDCA in 1Vlerrell Dow in 

suppo1t of its rejection of the argument that the FDCA could be effective to displace state-law 

causes of action, concluding that the provisions of the FDCA do not displace state-law causes of 

action and do not give rise to any private right of action: 

Congress enacted the FDCA to bolster consumer protection against harmful 

products. See Kordel v. United States, 335 U.S. 345, 349, 69 S. Ct. 106, 93 L. Ed. 

52 (1948); United States v. Sullivan, 332 U.S. 689, 696, 68 S. Ct. 331, 92 L. Ed. 

297 (1948). Congress did not provide a federal remedy for consumers harmed by 

unsafe or ineffective drugs in the 1938 statute or in any subsequent amendment. 

Evidently, it determined that widely available state rights of action provided 

appropriate relief for injured consumers. It may also have recognized that 

state-law remedies fmther consumer protection by motivating manufacturers to 

produce safe and effective drugs and to give adequate warnings. 

Wyeth v. Levine, 555 U.S. 555, 574 (2009) (footnote omitted). 

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here because while 21 U.S.C. § 337(a) of the FDCA expressly provides that only the federal 

government may enforce or restrain violations within its scope, the FDCA provisions governing 

dietary supplements, generally codified at 21 U.S.C. §§ 341-3501-1, are in some sense outside the 

scope of Section 337(a). GNC's position is not persuasive. 

In fact, Section 337(a) provides, in relevant part, that "[e]xcept as provided in subsection 

(b) of this section [337] [the provisions of which are not at issue here], all ... proceedings for the 

enforcement, or to restrain violations, of this chapter shall be by and in the name of the United 

States." 21 U.S.C. § 1337(a). Moreover, the "chapter" referenced in Section 337(a) denotes 

Chapter 9 of Title 21 of the United States Code, or the entirety of the FDCA. See 21 U.S.C. 

§§ 301-399f. Section 337(a) thus clearly establishes Congressional intent not to provide for any 

private right of action to enforce or restrain violations of the dietary supplement provisions of the 

FDCA, or indeed any other provision of the FDCA not expressly discussed in 21 U.S.C. 

§ 337(b). See 21 U.S.C. § 337(a); see also Perez v. Nidek Co., 711F.3d1109, 1119 (9th Cir. 

2013) ("private enforcement of the [FDCA] is ban-ed .... "). 

Even ifthere were some doubt as to whether iV!errell Dow were controlling, as GNC 

suggests, de novo analysis of the issue yields the same result. As GNC notes, in Grable & Sons 

1\Ietal Prods. v. Dante Eng'g & l'v!fg., 545 U.S. 308 (2005), the Supreme Comi clarified the 

framework for determining whether "federal-question jurisdiction will lie over state-law claims 

that implicate ... federal issues." Grable, 545 U.S. at 312. The Grable court held that "federal 

jurisdiction demands not only a contested federal issue, but a substantial one, indicating a serious 

federal interest in claiming the advantages thought to be inherent in a federal forum." Id at 313 

(citations omitted). The comi further held that a "federal issue will ultimately qualify for a 

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federal forum only if federal jurisdiction is consistent with congressional judgment about the 

sound division of labor between state and federal courts governing the application of 

§ 1331." Id at 313-314. Recently, the Supreme Comt articulated the Grable framework still 

more concisely as follows: 

[F]ederal jurisdiction over a state law claim will lie if a federal issue is: 

(1) necessarily raised, (2) actually disputed, (3) substantial, and ( 4) capable of 

resolution in federal court without disrnpting the federal-state balance approved 

by Congress. Where all four of these requirements are met, we held, jurisdiction 

is proper because there is a 'serious federal interest in claiming the advantages 

thought to be inherent in a federal forum,' which can be vindicated without 

disrupting Congress's intended division oflabor between state and federal courts. 

Gunn v. lv!inton, 133 S. Ct. 1059, 1065 (2013), quoting Grable, 545 U.S. at 313-314. 

For purposes of the Grable/Gunn framework, a federal issue is "necessarily raised" by a 

state-law claim ifthe claim cannot be resolved without consideration of the issue. See id. at 

1065. To raise an "actually disputed" federal issue, a state-law claim must "really and 

substantially involve[] a dispute or controversy respecting the validity, construction or effect of 

[federal] law." Grable, 545 U.S. at 313 (alterations original; quotation marks omitted), quoting 

Shu/this v. lvfcDougal, 225 U.S. 561, 569 (1912). For a federal issue to be "substantial," there 

must be "a serious federal interest in claiming the advantages thought to be inherent in a federal 

forum," one that "justif[ies] resort to the experience, solicitude, and hope of uniformity that a 

federal forum offers." Grable, 545 U.S. at 312-313. Moreover, the substantiality of an issue is 

to be determined not by reference to the impmtance of the issue for resolution of the parties' 

dispute, but rather solely from the perspective of the integrity of the federal system itself 

See Gunn, 133 S. Ct. at 1066. Finally, to determine whether an issue is "capable ofresolution" in 

federal comt without disrupting the balance between federal and state courts requires the comts 

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to consider whether Congress intended to displace state-law causes of action and whether the 

states have a legitimate interest in deciding claims that may depend in part on the federal issue. 

See id at1068. 

Analysis of the claims at issue here under the Grable/Gunn framework establishes that 

the State's claims do not give rise to federal-question jurisdiction. As a preliminary matter, I 

agree with GNC that the first two elements of the framework are satisfied here. Specifically, the 

State's UTP A claims rely on the proposition that picamilon and BMPEA are not lawful dietary 

supplements or ingredients of dieta1y supplements, and the State suppo1is that proposition by 

reference to 21 U.S.C. § 32l(ff), which defines that term for FDCA purposes. Because the State 

relies on the federal definition to establish the "unlawfulness" element of its UTP A claims, the 

UTPA claims cannot be resolved without consideration of the federal definition, such that the 

definition is necessarily raised, see Gunn, 133 S. Ct. at 1065; because GNC intends to argue that 

in fact picamilon and BMPEA were not at the material times lmlawful dietmy supplements for 

FDCA purposes, there is a controversy regarding both the construction and the effect of the 

federal definition, such that the necessarily raised federal issue is also actually disputed, see 

Grable, 545 U.S. at 313. 

Notwithstanding the foregoing, I agree with the State that GNC cannot satisfy either the 

"substantiality" or the "federal-state balance" elements of the framework. The insurmountable 

obstacle GNC faces are the facts that Congress did not provide for any private right of action to 

enforce the implicated provisions of the FDCA, and that Congress did not intend to displace the 

"widely available state rights of action [that] provided appropriate relief for injured consumers" 

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in the absence of any such federal right of action. 4 Wyeth, 555 U.S. at 574. In light of Congress' 

election to pe1mit state-law rights of action to remain in place, there can be no cognizable 

"serious federal interest in claiming the advantages thought to be inherent in a federal forum," 

nor can it seriously be argued that pe1mitting this case to go forward in state comi would in any 

sense disrupt the balance between federal and state courts.5 See Grable, 545 U.S. at 312-313; 

See Gunn, 133 S. Ct. at 1066, 1068; see also Or. ex rel. Kroger v. Johnson & Johnson, 832 F. 

Supp. 2d 1250, 1255 (D. Or. 2011) (reaching the same conclusion as to the "substantiality" or the 

"federal-state balance" elements of the framework on analogous facts). It follows that the State's 

UTP A claims do not give rise to federal-question jurisdiction. 

Moreover, the foregoing analysis further establishes that the State's UTP A claims do not 

constitute an impermissible effort to enforce the FDCA, such that no grounds exist for 

questioning whether the State has authority to pursue its claims herein in its own behalf or for 

concluding that the Oregon Attomey General is pursuing the claims asse1ied herein in her 

personal capacity. In consequence, this cou1i may not properly exercise diversity jurisdiction 

4 For the same reasons, GNC's alternative argument that federal-question jurisdiction 

arises here because the State's UTP A claims are completely preempted by the FDCA is also 

patently incorrect as a matter of law; Congressional intent not to displace state-law remedies is 

not consistent with Congressional intent to completely preempt state-law remedies. 

5 GNC argues that this co mi should reach a different result in its analysis of the 

"substantiality" or the "federal-state balance" elements of the framework, because here the federal 

question at issue has not yet been resolved by any comi, including any federal court; GNC takes 

the position that, because the federal question at issue is entirely novel, it must be resolved by a 

federal comi before its implicature in a state-law claim can fail to give rise to federal-question 

jurisdiction. However, the lvferrell Dow comi considered and expressly rejected this ve1y 

argument, holding that "[t]he novelty of an FDCA issue is not sufficient to give it status as a 

federal cause of action; nor should it be sufficient to give a state-based FDCA claim status as a 

jurisdiction-triggering federal question." 1Y!errell Dow, 478 U.S. at 816-817. 

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over the State's claims herein, see Wyeth, 555 U.S. at 574, Johnson & Johnson, 832 F. Supp. 2d 

at 1258-1260 (and, in any event, because GNC did not remove this action on the purported basis 

of diversity jurisdiction and cannot now timely amend its removal papers to assert diversity 

jurisdiction, it may not now defeat the State's motion for remand on the grounds that this court 

may properly exercise subject-matter jurisdiction on that basis, see ARCO Envtl. Remediation, 

L.L. C. v. Department of Health & Envtl. Quality, 213 F.3d 1108 (9th Cir. 2000)). 

CONCLUSION 

For the reasons set fotih above, I recommend that the State's motion (#6) for remand of 

this action to state court be granted. An order of remand should be prepared. 

SCHEDULING ORDER 

The Findings and Recommendation will be refened to a district judge. Objections, if any, 

are due fomieen (14) days from service of the Findings and Recommendation. Ifno objections 

are filed, then the Findings and Recommendation will go under advisement on that date. 

If objections are filed, then a response is due fourteen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

Dated this 30th day of March, 2016. 

Honorable Paul Papak 

United States Magistrate Judge 

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