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From Health Law Daily, April 11, 2013

Class action for selling dietary supplements with undisclosed animal-based by-products is preempted

By Jenny M. Burke, JD, MS

Syeda Lateef (Lateef), was unsuccessful in pursuing her claims against Pharmavite LLC (Pharmavite), the manufacturer of nutritional supplements, which Lateef claimed advertised its supplements in violation of federal laws because the products included undisclosed animal-based by-products (Lateef v Pharmacite LLC, April 10, 2013, Kocoras, C). Her class action suit was dismissed because Lateef’s allegations and exhibits failed to support her claims.

Complaint. Lateef is a practicing Muslim and adheres to dietary restrictions that prohibit her from eating animal-based food products, including pork and pork by-products. Pharmavite manufactures, markets, and sells nutritional supplements under the Nature Made brand. Lateef specifically alleged that Nature Made supplements (1) contained pork and other animal-based by-products; (2) that Nature Made labels failed to list these by-products as an ingredient, despite representations on Pharmavite’s website that Pharmavite is a trustworthy company; and (3) that Lateef purchased a bottle of Nature Made Vitamin D supplements as a consequence of this alleged deception. Her complaint maintained that the Vitamin D tablets were coated with gelatin. Gelatin is manufactured, in part, with extracts from animal by-products: specifically from cattle, chicken, and pigs.

Failure to state a claim. According to the court, Lateef’s complaint failed because she could not support her allegations. She claimed that Pharmavite was in violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/2. However, to state a claim under section 2 of the ICFA, a Lateef needed to allege that Pharmavite misrepresented a material fact in the conduct of a trade or commerce, with the intent that others would rely on that misrepresentation. The representation is material if a reasonable person could be expected to rely on a statement or omission in deciding to enter into a transaction. Pharmavite argued and the court agreed that Pharmavite’s representations were mere "puffery" or "exaggerations reasonably expected of a seller as to the degree of quality of his or her product" and not to be relied upon. Lateef’s statements contained no assertions of fact as to a specific product or ingredient, nor did they provide a basis by which a reasonable person would purchase Pharmavite’s supplements.

Lateef also attempted to claim a breach of express warranty. To state a claim for breach of express warranty under Illinois law, Lateef needed to show breach of an affirmation of fact or promise which was made part of the basis of the bargain. There are no particular words that are necessary to create an express warranty; however, the court held that a positive assertion of fact by Pharmavite at the time of the sale for the purpose of assuring Lateef or another purchaser of that fact and thereby inducing her to make the purchase, constitutes an express warranty. The two statements identified by Lateef were not actionable because they contained no assertion of fact concerning the presence or absence of gelatin in its dietary supplements. Accordingly, Pharmavite’s motion to dismiss the claim for breach of express warranty as well as the claim for violation of the ICFA were dismissed.

The case number is 12 C 5611.

Attorneys: Bridget M. Ahmann (Faegre Baker Daniels LLP) for Pharmavite LLC.

Companies: Pharmavite LLC

MainStory: TopStory AdvertisingNews SupplementNews LabelingNews IllinoisNews

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