Tuesday, March 10, 2020

"complete" vitamin is plausibly deceptive where essential nutrients are lacking

Devane v. Church & Dwight Co., No. 3:19-cv-09899-BRM-LHG, 2020 WL 998946 (D.N.J. Feb. 28, 2020)

Plaintiffs brought consumer protection claims based on Church & Dwight’s purportedly false labelling of several multivitamins, including L’il Critters Multivitamins, Vitafusion Women’s Complete Multivitamins, and Vitafusion Men’s Complete Multivitamins, which allegedly lacked at least three essential vitamins identified by the FDA as being “necessary for human health” (vitamin K, thiamin, riboflavin, and, in one case, niacin) but were nonetheless marketed as a “complete multivitamin” containing all “essential nutrients.”  They brought claims under New Jersey and Florida law.

The court first rejected the doctrine of primary jurisdiction; there were no relevant proceedings or FDA rulings that would justify deference. C&D argued that defining the term “complete” in regard to a dietary supplement is “squarely within the FDA’s particular filed of expertise and discretion.” But the claim here didn’t require a general definition of “complete,” but rather a determination of whether labeling the products as “complete multivitamins” was misleading. Misleadingness is “within the conventional experience of district courts.”  Next, the court found that plaintiffs had Article III standing for past injury, but not for injunctive relief.

Plaintiffs adequately pled they were deceived by the labeling plus the alleged fact that at least three essential nutrients were missing. They also adequately alleged ascertainable loss as required for NJCFA claims. Because the product couldn’t function as a “complete multivitamin,” it was plausibly “entirely valueless” for that purpose.  Although reliance isn’t required, loss must be suffered “as a result of” the defendant’s unlawful conduct, which can occur when people “saw the challenged advertisements” and “would not have purchased the [product] but for the challenged advertisements.” This was adequately alleged. Similar FDUTPA claims also survived.  New Jersey warranty claims, but not Florida warranty claims, also survived.

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