Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—NDIll: Illinois Deceptive Practices Claim over Presence of Gelatin in Nutritional Supplements Fails, (Apr 11, 2013)

By Tobias J. Gillett, J.D., LL.M.

A member of the Muslim faith failed to state an Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) claim against a nutritional supplement company over statements on the company’s website that allegedly misled her into purchasing supplements containing gelatin, the federal district court in Chicago has ruled (Lateef v. Pharmavite LLC, April 10, 2013, Kocoras, C.). Statements referring to the company’s commitment to transparency and support for healthy lifestyles were mere "puffery," according to the court, and the company had no duty under governing law to label its supplements as containing gelatin.

Pharmavite LLC is a producer and distributor of nutritional supplements. A practicing member of the Muslim faith, Syeda Lateef brought suit against Pharmavite, alleging that various statements on the company’s website led her to believe that the nutritional supplements did not contain any pork-based ingredients, but that she later discovered that the supplements contained gelatin. She asserted a claim under the ICFA, among other claims. Pharmavite moved to dismiss.

The court explained that a plaintiff must allege that the defendant "misrepresented a material fact in the conduct of a trade or commerce, with the intent that others would rely on such misrepresentation," in order to state a claim under Section 2 of the ICFA. The court noted that a "representation of fact is material if a reasonable person could be expected to rely on a statement or omission in deciding to enter into a transaction."

The court concluded that Pharmavite’s statements amounted to mere "puffery," or "exaggerations reasonably expected of a seller as to the degree of quality of his or her product, the truth or falsity of which cannot be precisely determined." Statements such as those extolling the company’s "commitment to . . . transparency," practices "supporting healthy lifestyles," belief in "empowering consumers to support healthy lifestyles," or communicating "important details of our products" made no representations regarding the presence of gelatin. They contained no "assertions of fact" from which a reasonable person "could infer the absence of gelatin," in the court’s view. Moreover, the statements did not provide an "objective measure from which a reasonable person can gauge their truth or falsity."

The court also rejected Lateef’s argument that Pharmavite’s statement "Pharmavite . . . goes above and beyond to guarantee to consumers that what is on the label is on the bottle" could support her claims. That statement also did not make any "factual representation[s] about a specific ingredient or product." Moreover, the federal Nutrition Labeling and Education Act did not require Pharmavite to list gelatin as an ingredient, and "a ruling in her favor would penalize Pharmavite for not labeling gelatin on its label," something Pharmavite had no duty to do "under the governing federal regulations."

The court also dismissed Lateef’s breach of express warranty, unjust enrichment, and Common Benefit Doctrine claims.

The case is No. 12 C 5611.

Attorneys: Christopher C. Martins (Robbins Geller Rudman & Dowd LLP) for Syeda F. Lateef. Bridget M. Ahmann (Faegre Baker Daniels LLP) for Pharmavite LLC.

Companies: Pharmavite LLC

Cases: Advertising StateUnfairTradePractices IllinoisNews