Mass Tort Defense
Consumer Fraud Class Claim Over Dietary Supplements Dismissed
A federal court in Illinois recently ruled that a plaintiff in a putative class action failed to state a claim in his suit challenging the marketing of two dietary supplements. See Padilla v. Costco Wholesale Corp., No. 11-C-7686 (N.D. Ill., 1/16/13).
Plaintiff alleged a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/2. He alleged that defendant distributed and marketed the Kirkland Signature™ line of dietary supplements in stores and on-line. These products included Glucosamine with MSM products, and the Glucosamine/Chondroitin line of products. Plaintiff asserted he purchased a bottle of Glucosamine with MSM. And he alleged that that there was no competent and reliable scientific evidence that taking glucosamine either with chondroitin sulfate, or with MSM, results in the body metabolizing it into something that builds or nourishes cartilage or provides joint mobility or joint cushioning. He asserted that clinical studies have found that glucosamine, chondroitin sulfate, and MSM are not effective. Thus, he was allegedly deceived by defendant's representations regarding the products, and he would not have purchased Glucosamine with MSM had he known the truth.
Defendant moved to dismiss the (latest) complaint.. The court noted that a complaint must allege enough facts to state a claim to relief that is plausible on its face to survive a motion to dismiss. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). For a claim to have facial plausibility, a plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Typically, the amount of factual allegations required to state a plausible claim for relief depends on the complexity of the legal theory alleged. See Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
The court concluded the Padilla failed to state an ICFA claim as to Glucosamine Chondroitin because Padilla did not actually purchase Glucosamine Chondroitin. Plaintiff proposed to pursue claims on behalf of himself and putative class members who purchased either Glucosamine with MSM and/or Glucosamine with Chondroitin. To bring an ICFA claim, a plaintiff must either allege it was a consumer of the defendant or allege a close nexus with Illinois consumers. Padilla purchased a bottle of Glucosamine with MSM, according to the complaint, but never alleged he purchased of the Glucosamine/Chondroitin. Because Padilla did not purchase Glucosamine Chondroitin, Padilla had not sustained any actual damage from alleged representations about it.
As to Padilla’s ICFA claim based on Glucosamine with MSM, the clinical studies cited by plaintiff were insufficient to state a claim that the product representations were false or misleading. Although Padilla cited to clinical studies supposedly showing the dietary supplements were ineffective for the treatment of osteoarthritis, he failed to make a connection between the studies and the actual representations on the label. The Glucosamine with MSM product label did not claim to be effective for the treatment of osteoarthritis. Thus, clinical studies regarding the ineffectiveness of glucosamine or chondroitin in the treatment of osteoarthritis did not have any bearing on the truthfulness of the actual representations made.
The court thus dismissed with prejudice the claims over the Glucosamine/Chondroitin supplement, and the MSM claim were dismissed with leave to amend.