Antitrust Law Daily Wrap Up, ADVERTISING—D.N.J.: Consumer failed to support claim against dietary supplement manufacturer over efficacy representations, (Jan 16, 2014)

By Jody Coultas, J.D.

A dietary supplement purchaser failed to state more than conclusory allegations to support a New Jersey Consumer Fraud Act (CFA) claim against Vitamin Shoppe, Inc., the federal district court in Newark has held (Hodges v. Vitamin Shoppe, Inc., January 15, 2014, Chesler, S.). The claim was dismissed without prejudice.

Vitamin Shoppe promoted its “True Athlete Training Formula” product as a bodybuilding, fitness training, and endurance developing formula. The complaining purchaser alleged that “True Athlete” did not deliver the promised results. Specifically, the ingredients were ineffective and the instructed dosage was insufficient to achieve the results.

The purchaser had Article III standing to bring the suit, according to the court. To have Article III standing, a plaintiff must show an injury-in-fact, that the injury was fairly traceable to some action of the defendant, and the injury could be redressed by the court. Injury-in-fact is a concrete and particularized violation of a legally protected interest.

Vitamin Shoppe argued that the purchaser failed to establish an injury-in-fact because he did not allege that he ingested the product or that he was disappointed by its underperformance and/or failure to provide the promised enhancement to his exercise routine. However, the claims were not based on bodily harm. Rather, the purchaser sufficiently alleged an economic loss in connection with his own purchase.

To state a CFA claim, the purchaser was required to identify each statement and/or omission made by Vitamin Shoppe about “True Athlete” that violated the CFA and plead with particularity the basis upon which he contends that such statement and/or omission was false or misleading.

The purchaser failed to state the CFA claim with plausibility as required by Federal Rule of Civil Procedure 8(a), according to the court. The complaint did not point to where on the product label or the website Vitamin Shoppe made the allegedly false statements. The words used in the label did not match the words identified as misrepresentations. As to the statements Vitamin Shoppe actually made, the purchaser could not show that they were false. The basis of the falsity claims was the absence of scientific support for delivery of benefits at the dosages indicated by the product. The conclusion that the representations were false required a leap from the existing scientific research. Also, a lack of clarity prevented the court from evaluating whether the claims involved ineffectiveness or non-substantiation.

In an amended complaint, the purchaser may cure the pleading deficiency by more clearly defining the offending misrepresentations and by adding factual allegations supporting his claim that those misrepresentations are false or misleading, the court explained.

The case is No. 13-3381 (SRC).

Attorneys: Scott A. George (Seeger Weiss, LLP) for Steven Hodges. Michael R. McDonald (Gibbons, PC) for Vitamin Shoppe Inc.

Companies: Vitamin Shoppe, Inc.

Cases: Advertising NewJerseyNews