A federal court in Illinois has dismissed a putative class action filed against a
nutritional supplement company by a Muslim woman who alleged that the
company misled consumers by failing to disclose that some of its products
contain an animal-based product. Lateef v. Pharmavite LLC, No. 12-5611
(N.D. Ill., decided October 24, 2012). The court found the
consumer-fraud claim preempted and determined that the named plaintiff
lacked standing to rely on allegations relating to the company’s web-based
advertising because she did not visit the Website before purchasing the
product. The plaintiff also abandoned her federal law-based claim.

According to the court, the plaintiff has dietary restrictions that prohibit her
from eating certain animal-based food products such as pork. She allegedly
purchased the defendant’s Nature Made® Vitamin D tablets after carefully
reading the product label to ensure it did not contain animal byproducts.
Her complaint alleges that the tablets were coated with gelatin, which “is
manufactured in part with extracts from animal byproducts: specifically
from cattle, chicken, and pigs.” The plaintiff quoted statements from the company’s website indicating that “what is on the label is in the bottle” and other purported indicia of trustworthiness. She alleged violation of the state’s
consumer fraud statute, breach of express warranty, unjust enrichment, and
violation of the Magnuson-Moss Warranty Act.

The defendant argued that federal law exempts it from listing gelatin as an
ingredient on its labels because the law exempts the labeling of “incidental
additives,” extracts from food sources that have “no technical or functional
effect,” and are present at “insignificant levels.” The plaintiff evidently agreed
that her labeling claims are preempted but contended that she “seeks only
to enjoin Pharmavite ‘from falsely advertising that consumers can trust that
[Pharmavite] identifies every ingredient on a Supplement’s label.’” The court
disagreed, finding that the focus of her complaint was the product label, and
since she admitted that her label-related claims were preempted, the court
dismissed the consumer-fraud claim. The remaining state law-based claims
were dismissed for lack of standing.

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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.