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.)
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