A federal court in Washington has dismissed the second amended consumer fraud complaint filed against Costco Wholesale Corp. concerning its VitaRain® Enhanced Water Beverage; while the court dismissed the complaint without leave to amend, it did not dismiss it with prejudice. Maple v. Costco Wholesale Corp., No. 12-5166 (E.D. Wash., order entered November 1, 2013).

The plaintiff claimed that the name “VitaRain” is itself deceptive, and the court disagreed, finding it implausible that it could “deceive a substantial portion of the public into believing that the beverage is ‘full of vitamins only’ or that it is a ‘nutritional’ or ‘healthy’ beverage. The name ‘VitaRain’ is largely nonsensical.” The plaintiff also associated the name with another beverage product containing the word “vitamin,” and the court stated in this regard, “Plaintiff’s claim must be limited to the actual representation, ‘VitaRain’ in this case, and not some imagined representation he arrived at through a process of association.”

The court had directed the plaintiff to amend his first amended complaint by pleading a causal connection between his alleged injuries and alleged deceptive claims that the beverage contained “natural caffeine” and was a “natural tonic.” According to the court, he failed to do so. “The Second Amended Complaint does not specify what specific statements that Plaintiff read on the outer label, including whether he actually read the alleged deceptive claims that the beverage contained ‘natural caffeine’ or that it was a ‘natural tonic.’ Plaintiff further admitted at oral argument that he did not plead that he had read the ‘natural caffeine’ or ‘natural tonic’ claims.”

The court declined to address the defendants’ preemption argument because the plaintiff did not respond to it as to the defendants’ alleged failure to disclose “synthetic caffeine” or “other unnatural ingredients” on product labels. “Plaintiff instead argued that a different claim, his claim that the name ‘VitaRain’ is itself deceptive, is not preempted by federal law,” the court said. “More importantly, Plaintiff stated at oral argument that he was not asserting a free-standing claim for an alleged failure to disclose that the beverage contained ‘synthetic caffeine’ or ‘other unnatural ingredients.’ Rather, Plaintiff clarified that he has alleged that such disclosures were required only in light of Defendants’ alleged deceptive statements that the beverage contained only ‘natural caffeine’ and that the beverage was comprised of a ‘natural tonic.’” In the court’s view, because the plaintiff did not allege that he read these statements or based his purchasing decision on them, he failed to adequately plead causation under the state consumer protection law.


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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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