Hammer v. Vital Pharmaceuticals, Inc., 2012 WL 1018842
(D.N.J.)
Vital (VPX) makes dietary supplements, including
Clenbutrx. Its ads and packages stated
that Clenbutrx contains “Apple Geranium (Pelargoium odorantissomum) (leaves)
standardized to 1, 3 Dimethylpentylamine.”
VPX also advertised that Clenbutrx is “certified by science, backed by
the real world, and proven to give you mind blowing energy” and that its
“authentic synergistic blend of ingredients ... leave[s] scientists wondering
how amazing this stuff is.” Hammer
alleged these were misrepresentations.
In particular, Hammer alleged that apple geranium, a natural substance,
does not normally contain 1, 3 Dimethylpentylamine, which is a synthetic
laboratory-produced chemical compound. Thus, VPX allegedly misrepresented Clenbutrx
as a dietary supplement. In addition,
Hammer alleged that “[n]o scientist has ever ‘certified’ or ‘backed’ this
product's ingredient at issue.”
The court required the NJCFA claim to survive Rule 9(b). VPX
argued that (1) the labeling of Clenbutrx as a “dietary supplement” was
mandated by federal law; (2) the alleged misleading statements on Clenbutrx's
website are puffery; and (3) Hammer didn’t suffer an ascertainable loss.
The court found that the “dietary supplement” claim failed. Under federal law, a dietary supplement is a
product intended to supplement the diet that contains one or more vitamins,
minerals, herbs/botanicals, amino acids, “a dietary substance for use by man,”
or variations thereof. The intended use
is relevant to whether the product is a dietary supplement. Hammer failed to allege that there was no dietary ingredient listed on the
label, and containing one or more suffices; the statute doesn’t require that
all ingredients qualify.
Website statements: (1) Clenbutrx is “the world's fastest,
hardest hitting fat incinerator”; (2) Clenbutrx is “certified by science,
backed by the real world, and proven to give you mind-blowing energy”; and (3)
Clenbutrx's “authentic synergistic blend of ingredients ... leave[s] scientists
wondering how amazing this stuff is.” VPX argued that these were all puffery.
The court agreed that (1) and (3) were “the epitome of vague
and highly subjective claims of superiority.”
Using the “buzz words” “authentic” and “scientists” wasn’t enough to
make a specific claim. “[S]tatements are
routinely made by companies seeking to gain a competitive advantage in their
respective industries, and therefore they are considered puffery.” (Which raises the embarrassing question: if
these statements do provide a competitive edge, doesn’t that mean that actual
consumers are in fact relying on them as if they provided some actual
information? But leave that aside.)
However, “certified by science” wasn’t puffery, and
transformed the “mind blowing energy” claim into something both specific and
measurable.
Moreover, Hammer pled ascertainable loss of $29.99, the
price he paid. In cases of
misrepresentations that rendered a product essentially worthless, the purchase
price can be the ascertainable loss; loss in value is also a workable theory
where there’s a difference between what was promised and what was received.
VPX argued that Hammer didn’t properly plead a causal
relationship between the alleged unlawful conduct and the ascertainable
loss. Causation under the NJCFA isn’t
reliance. But for ads, the court
continued, causation is “particularly crucial” under 9(b). Hammer had to allege where and when he saw
the ad containing the misrepresentation.
He didn’t do that here. While the
complaint listed specifc websites on which VPX advertised the product, Hammer
didn’t identify any specific ads, where he viewed them, how he was misled, and
how those ads caused his injuries. The
court also didn’t like that Hammer failed to allege where he bought the
product, because he claimed to have been affected both by internet ads and by
the packaging.
Hammer also failed to state a claim for unjust enrichment,
which in NJ requires a direct relationship between the parties. Dismissed with leave to replead some of the claims, if possible.
No comments:
Post a Comment