Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Consumer states claims against supplement manufacturer over representations about product effectiveness, (Sep 19, 2013)

By Jody Coultas, J.D.

A supplement purchaser may bring pursue claims against supplement manufacturer Nutramax Laboratories, Inc. for allegedly misrepresenting the effectiveness of its supplement, the federal district court in Chicago has held (Conrad v. Nutramax Laboratories, Inc., September 18, 2013, Kocoras, C.).

Nutramax manufactures and markets joint ailment supplements, including CosaminDS and CosaminASU. The purchaser, an Illinois resident, bought CosaminDS allegedly because of representations on the packaging that stated the product helped “joints last longer,” it was “the only brand proven effective … to reduce joint pain[,]” and that it had been shown in laboratory tests “to protect cartilage cells from breakdown.” Several studies have challenged the efficacy of CosaminDS.

The purchaser filed a putative class action against Nutramax under the consumer protection statutes of Illinois, the District of Columbia, and 31 other states, seeking damages and injunctive relief.

Because the purchaser did not buy CosaminASU, the court held that he lacked standing to assert claims on behalf of a class seeking damages based on the purchase of that product. The purchaser could not show any damages as a result of the purchase of CosaminASU, as required for standing. The purchaser argued that the issue of whether he purchased CosaminASU did not bear upon his standing to sue but rather upon the requirements for class certification. However, a plaintiff cannot predicate standing on an injury he has not sustained. Also, CosaminASU and CosaminDS were not substantially similar products.

Nutramax was unable to show that the purchaser’s claim for injunctive relief should be dismissed, according to the court. The Illinois Consumer Fraud and Deceptive Business Practices Act provides a private right of action for injunctive relief in any case where the consumer has sustained damages. The purchaser argued that he paid approximately $60.00 for CosaminDS and would not have purchased it but for the advertising contained on the packaging. The $60.00 constituted money damages, giving him the right to seek injunctive relief.

The purchaser’s claim met the heightened pleading standard of Federal Rule of Civil Procedure 9(b), according to the court. In his claim, the purchaser cited several studies to show Nutramax’s claims about CosaminDS were false. These studies found that the active ingredients in CosaminDS, either alone or in combination, did not cause improvement in patients statistically significant from patients who were given a placebo supplement. Nutramax argued that the studies cited by the purchaser that challenged the efficacy of CosaminDS focused on patients with osteoarthritis, while the advertising did not distinguish between results for patients with or without osteoarthritis. However, the studies concerned the primary active ingredients in CosaminDS. At this stage, the purchaser’s claims were sufficiently pled to withstand a motion to dismiss.

The case is No. 13 C 3780.

Attorneys: Stewart M. Weltman (Stewart M Weltman, LLC) for Chad Conrad. Andrew Malen Spangler, Jr. (Barack Ferrazano Kirschbaum & Nagelberg LLP) for Nutramax Laboratories, Inc.

Companies: Nutramax Laboratories, Inc.

Cases: Advertising StateUnfairTradePractices IllinoisNews