Failure to disclose gelatin not actionable despite general statements about product's truthfulness

Lateef v. Pharmavite LLC, 2013 WL 1499029 (N.D. Ill.)

Lateef, a practicing Muslim, sued Pharmavite for using pork-based gelatin shells to coat supplements advertised as vegetarian- and vegan-friendly. She bought a bottle of Pharmavite’s D3 tablets and visited Pharmavite’s website, where she was explosed to statements such as: Nature Made was “one example of a brand that goes above and beyond to guarantee to consumers that what is on the label is in the bottle”; “We make sure consumers can trust what they're putting into their body”; “we believe transparency means ... Acting Openly & Honestly”; “Throughout, we have been proud of our choices about our products, but in the past we have made many of these decisions with less explanation than our consumers and customers would like. We are making a commitment to change that”; “We know that the first key step is communicating more of our choices and actions regarding our products publicly, including potentially complex but important details of our products”; and so on. She visited the Vitamin D portion of the website, which listed the supplement’s ingredients but didn’t list gelatin, though it said that Pharmavite’s “Vitamin B-12 supplements are recommended ... for vegetarians and vegans who avoid dietary sources rich in Vitamin B-12.”

Lateef alleged that she was led to believe that the tablets didn’t contain pork-based ingredients, and that she wouldn’t have bought the tablets if she’d known the truth since eating pork is a sin. She alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of warranty, and unjust enrichment.

The court found that Pharmavite hadn’t made any actionable misstatement or deceptive omission.  The statements she identified were puffery—opinion, not fact.  They didn’t make any assertions of fact about specific products or ingredients, so no reasonable person would rely on them, and there were no objective measures against which the statements’ truth or falsity could be gauged. Even “Pharmavite ... goes above and beyond to guarantee to consumers that what is on the label is on the bottle” didn’t actually guarantee any fact; and in any event, any ingredient on the label was in the bottle. 

The problem was, under the NLEA, Pharmavite was under no duty to list gelatin as an ingredient, so claims based just on the omission from the ingredients list were preempted and couldn’t be couched in terms of a false advertising claim, and nothing else supported such a claim.

This also destroyed the breach of warranty claim (and the unjust enrichment claim).  The “guarantee” statement just referred consumers to the list on the bottle, and its lack of specificity “falls short of creating the kind of contractual rights on which a breach of express warranty must be predicated.”  Likewise, “We make sure consumers can trust what they're putting into their body,” “Vitamin B-12 supplements are recommended ... for vegetarians and vegans who avoid dietary sources rich in Vitamin B-12” didn’t contain any assertion of fact about the presence or absence of gelatin.  (I think this last misunderstands what vegetarians/vegans are; if you recommend that a vegetarian consume animal-based gelatin, you are recommending that she stop being a vegetarian.  The necessary implication is that the B-12 vitamins at issue aren't made with animal products. Maybe Lateef didn't buy the B-12, but that doesn't make the claim here ok for gelatin-based supplements.)