"authentic" and "scientists" not enough to convert puffery into factual claim

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.