Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—S.D. Fla.: Supplement maker unable to flush class action over “flush-free” niacin, (Mar 20, 2015)

By Edward L. Puzzo, J.D.

Claims that advertising and labeling for a “flush-free” niacin product were false and deceptive were sufficiently pleaded to survive a motion to dismiss the putative class action, the federal district court in Fort Lauderdale, Florida has ruled (Mazzeo v. Nature’s Bounty, Inc., March 19, 2015, Bloom, B.).

Plaintiff Anthony Mazzeo brought a putative class action against supplement maker Nature’s Bounty, alleging that the advertising and product labeling for its “Flush Free Niacin” product was false and deceptive, in violation of the Florida Deceptive and Unfair Trade Practices Act (FDUPTA).

Niacin, used to lower blood cholesterol, was known to cause skin-flushing redness in persons taking it. Plaintiff alleged that Nature’s Bounty’s “Flush Free Niacin” product, while admittedly “flush-free” also did not have the same beneficial effect on cholesterol that ordinary niacin did. The product packaging further claimed that the product “promoted heart health, energy metabolism, and nervous system health.’ Plaintiff alleged that the product advertising and labeling were deceptive because reasonable consumers were led to believe that the product, by its name, was an alternative for ordinary niacin without flushing of the skin, and because there was no reliable scientific data supporting the heart, energy and nervous system claims.

In response, Nature’s Bounty stated that plaintiff’s claims must fail because plaintiff failed to allege an actionable misrepresentation, and failed to show causation and injury, as required for claims under FDUPTA.

The court disagreed, ruling that plaintiff plausibly advanced its theory of the case: that reasonable consumers were deceptively led to believe that the product was an alternative for ordinary niacin, with similar benefits minus flushing of the skin, but that studies showed that the product did not release effective concentrations of the product into the bloodstream, nor did it produce measurable reductions in cholesterol. While the plaintiff did not prove his case, he was not required to do so at this stage of the proceedings. Thus, the pleadings were sufficient, the court ruled.

The court also found that defendant’s allegations of a failure to show causation and injury were unavailing. Plaintiff adequately pleaded that he purchased and consumed the product based on material representations on the product labeling, which he cited. Injury was also adequately pleaded, continued the court, because he sought reimbursement of the premium price paid for purportedly “flush-free” niacin over the price of ordinary niacin. Thus, the court denied the motion to dismiss.

The case is Civil Action No. 14-60580-CIV-BLOOM/VALLE.

Attorneys: Joshua Harris Eggnatz (The Eggnatz Law Firm, PA) for Anthony Mazzeo. Brian Michael Ercole (Morgan Lewis, Bockius) for Nature's Bounty, Inc.

Companies: Nature's Bounty, Inc.

Cases: Advertising StateUnfairTradePractices FloridaNews