Lateef v. Pharmavite LLC et al

Filing 45

MEMORANDUM OPINION signed by the Honorable Charles P. Kocoras on 4/10/2013.Mailed notice(sct, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SYEDA F. LATEEF, individually and On,
Behalf of All Others Similarly Situated,
Plaintiff,
vs.
PHARMAVITE LLC, OTSUKA,
PHARMACEUTICAL CO., LTD. and
OTSUKA AMERICA, INC.,
Defendants.

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12 C 5611

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
Now before the Court is Defendant Pharmavite LLC’s (“Pharmavite”) motion to
dismiss Plaintiff Syeda F. Lateef’s (“Lateef”) amended complaint under Federal Rule
of Civil Procedure 12(b)(6). For the following reasons, the motion is granted.
BACKGROUND
Lateef commenced this putative class action lawsuit on July 17, 2012. She sued
Pharmavite, Otsuka Pharmaceutical Co., Ltd. (“OPC”) and Otsuka America, Inc.
(“OAI”) for consumer fraud, breach of express warranty, unjust enrichment, and
violation of the Magsuson-Moss Warranty Act. On September 4, 2012, Lateef
stipulated to voluntarily dismissing OPC and OAI without prejudice, leaving
Pharmavite as the only defendant in the suit. Pharmavite then moved to dismiss the

complaint, arguing that Lateef’s state law claims were preempted by federal law and
that Lateef waived her federal claim. We agreed and dismissed the complaint without
prejudice in a memorandum opinion. See Lateef v. Pharmavite LLC, 12 C 5611, 2012
U.S. Dist. LEXIS 152528 (N.D. Ill. Oct. 24, 2012). Specifically, we held that Lateef’s
claims sought to impose a requirement on Pharmavite beyond what was required of it
under federal law. Id. at *5-10. Lateef filed her first amended complaint (“amended
complaint”) on November 26, 2012 against Pharmavite, which Pharmavite now moves
to dismiss. We recount the allegations contained in the amended complaint, which we
are obligated to accept as true.
Lateef is a practicing member of the Muslim faith. Islam requires devotees to
follow certain dietary restrictions which forbid the consumption of pork and animalbased products. Pharmavite is a California-based limited liability company which
develops, manufactures, distributes and markets various nutritional supplements under
the “Nature Made” brand name. According to the amended complaint, Pharmavite
markets approximately 60 Nature Made supplements which are coated in a pork-based
gelatin shell.
In March 2012, Lateef visited a retail pharmacy in Cook County, Illinois and
purchased a bottle of Nature Made Vitamin D3 1000 IU Tablets (“Tablets”). Sometime

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prior to the purchase, Lateef visited Pharmavite’s Nature Made website (“website”),
where she was exposed to the following statements:
•

Nature Made, manufactured by Pharmavite LLC, is 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.

•

For Nature Made as a vitamins and supplements company, we believe
transparency means . . . Acting Openly & Honestly.

•

Nature Made creates science-based, safe and effective products that meet
consumers health and wellness needs.

•

Pharmavite believes in empowering consumers to support healthy lifestyles.

•

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 are making a new commitment to you on the transparency and openness of
our decisions, our actions, and the straight facts regarding the vitamin and
supplement category as a whole.

•

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.

•

When ingredients arrive, they are tested for identity, and we continue verification
at every stage of the manufacturing process to ensure we meet or exceed industry
standards.

•

From ingredient sourcing, to state-of-the-art manufacturing practices we believe
it is our responsibility to lead in delivering quality products and a quality
consumer experience.
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Lateef also visited the portion of the website featuring Vitamin D Tablets, which listed
the supplement’s ingredients. Gelatin was not listed as an ingredient. Lateef later
discovered that the Tablets were coated in gelatin. She also alleges that the website
states that its “Vitamin B-12 supplements are recommended . . . for vegetarians and
vegans who avoid dietary sources rich in Vitamin B-12,” even though they also
allegedly contain gelatin.
Lateef claims that the representations made on Pharmavite’s website led her to
believe that the Tablets did not contain any pork-based ingredients. She further claims
that she would not have purchased the Tablets if she had known that the Tablets
contained gelatin since it is a sin to eat pork according to the Muslim faith.
Lateef brings this four-count amended complaint against Pharmavite on behalf
of herself and a putative class of Illinois persons or entities similarly damaged by
unknowingly consuming Nature Made supplements containing animal byproducts. She
alleges that Pharmavite is liable under (Count I) the Illinois Consumer Fraud and
Deceptive Business Practices Act (“ICFA”), 815 ILCS 505/2; (Count II) Breach of
Express Warranty; (Count III) Unjust Enrichment; and (Count IV) Attorneys’ fees under
the Common Benefit Doctrine. Lateef invokes the Court’s jurisdiction under the Class
Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2). Pharmavite now moves to
dismiss the complaint under Rule 12(b)(6). It asserts that Lateef’s ICFA and unjust

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enrichment claims are preempted by federal law, and that Lateef fails to state a claim
upon which relief may be granted. Because the entire amended complaint is capable
of resolution on Pharmavite’s Rule 12(b)(6) motion, we need not pass on Pharmavite’s
preemption arguments and proceed directly to the motion under Rule 12(b)(6).
LEGAL STANDARD
In assessing a Rule 12(b)(6) motion to dismiss, the Court accepts all well pled
facts as true and draws all permissible inferences in the plaintiff’s favor. Agnew v.
NCAA, 683 F.3d 328, 334 (7th Cir. 2012). A Rule 12(b)(6) motion to dismiss tests the
legal sufficiency of the complaint. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675
(7th Cir. 2001). The allegations in a complaint must set forth a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A plaintiff need not provide detailed factual allegations; she must only provide
enough factual support to raise her right to relief above a speculative level. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Furthermore, a claim must be facially
plausible, a requirement that is satisfied if the pleadings “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).

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DISCUSSION
I.

ICFA Claim
Pharmavite contends that Lateef’s ICFA claim fails because the allegedly

deceptive statements on which the claim rest are not actionable. To state a claim under
section 2 of the ICFA, a plaintiff must allege that the defendant “misrepresented a
material fact in the conduct of a trade or commerce, with the intent that others would
rely on such misrepresentation.” People ex rel. Madigan v. United Constr. of Am., 981
N.E.2d 404, 408 (Ill. App. Ct. 1st Dist. 2012) (quoting People ex rel. Hartigan v. E&E
Hauling, Inc., 607 N.E.2d 165, 174 (Ill. 1992)). Omissions are also actionable under
the ICFA if they are intended to induce the plaintiff’s reliance. Wigod v. Wells Fargo
Bank, N.A., 673 F.3d 547, 575 n.13 (7th Cir. 2012) (collecting cases). Materiality is
judged under an objective standard. Cirone-Shadow v. Union Nissan of Waukegan, 955
F. Supp. 938, 944 (N.D. Ill. 1997). A representation of fact is material if a reasonable
person could be expected to rely on a statement or omission in deciding to enter into a
transaction. Id.
Pharmavite argues that Lateef’s ICFA claim must fail because the statements on
which she relies are statements of opinion, not fact. Even if the statements can be
construed to be representations of fact, Pharmavite argues that no reasonable person

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could infer that the statements conveyed that Nature Made supplements did not contain
gelatin.
Pharmavite contends that the statements cited by Lateef are examples of mere
“puffery”: “exaggerations reasonably expected of a seller as to the degree of quality of
his or her product, the truth or falsity of which cannot be precisely determined.”
Barbara’s Sales, Inc. v. Intel Corp., 879 N.E.2d 910, 926 (Ill. 2007). Puffery cannot
serve as the basis of a claim under the ICFA. Id. Examples of puffery include “highquality,” “expert workmanship,” “custom quality,” “perfect,” “magnificent,”
“comfortable,” and “picture perfect.” Id. (citing Avery v. State Farm Mut. Auto. Ins.
Co., 835 N.E.2d 801, 846-47 (Ill. 2005)).
We agree with Pharmavite that the challenged statements are not actionable
under the ICFA. The statements contain no assertions of fact as to a specific product
or ingredient, and accordingly provide no basis by which a reasonable person would
purchase Pharmavite’s supplements. Barbara’s Sales, 879 N.E.2d at 927. For example,
the company’s statements that expound its “commitment to . . . transparency,”
“supporting healthy lifestyles,” belief in “empowering consumers to support healthy
lifestyles,” or communicating “important details of our products” do not come remotely
contemplate the presence of gelatin. The statements are better characterized as general
goals and platitudes that no reasonable person could infer the absence of gelatin from

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Nature Made supplements. Furthermore, the statements provide no objective measure
from which a reasonable person can gauge their truth or falsity. The ICFA does not
contemplate a remedy against Pharmavite in the event that it was not sufficiently
committed to transparency. Nor could Pharmavite be held liable if it was only
ambivalent regarding its consumers’ healthy lifestyles, or if it did not communicate its
products’ details thoroughly enough. Rather, these statements are akin to those cited
by the Illinois Supreme Court as mere puffery, and cannot serve as the basis of Lateef’s
ICFA claim.
Lateef nevertheless urges that the statement, “Pharmavite . . . goes above and
beyond to guarantee to consumers that what is on the label is on the bottle” can support
her ICFA claim. However, the statement still falls short. First, as with the statements
discussed in the previous paragraph, Pharmavite’s “guarantee” makes no factual
representation about a specific ingredient or product, and therefore fails to meet the
objective standard for a misleading statement. Further, Lateef does not quarrel with the
technical accuracy of the statement: if an ingredient is on the label, it can be found in
the supplement. Lateef’s claim that the statement is misleading must necessarily rest
on the premise that the omission of gelatin on the label is misleading. But as we ruled
in dismissing the original complaint, and as Lateef herself conceded in her brief
opposing Pharmavite’s first motion to dismiss, Pharmavite is under no duty to list

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gelatin as an ingredient under the Nutrition Labeling and Education Act (“NLEA”), 21
U.S.C. § 341 et seq. See Lateef, 2012 U.S. Dist. LEXIS 152528, at *8. Although the
amended complaint couches Lateef’s ICFA claims under the guise of a false advertising
claim, a ruling in her favor would penalize Pharmavite for not labeling gelatin on its
label. As we have already ruled, Pharmavite was under no duty to do so under
governing federal regulations. Id.
Because none of the statements attributed to Pharmavite are actionable under the
ICFA, Lateef’s ICFA claim is dismissed.
II.

Breach of Express Warranty Claim
Pharmavite contends that Lateef fails to state a claim for breach of express

warranty. To state a claim for breach of express warranty under Illinois law, “a plaintiff
must show breach of an affirmation of fact or promise which was made part of the basis
of the bargain.” Wheeler v. Sunbelt Tool Co., 537 N.E.2d 1332, 1341 (Ill. App. Ct. 4th
Dist. 1989). No particular words are necessary to create an express warranty; however,
“a positive assertion of fact by seller at the time of the sale for the purpose of assuring
the buyer of said fact and thereby inducing him to make the purchase, constitutes an
express warranty.” Coryell v. Lombard Lincoln-Mercury Merkur, 544 N.E.2d 1154,
1158 (Ill. App. Ct. 2d Dist. 1989). Because express warranties are contractual in nature,
“the language of the warranty itself controls and dictates the obligations and rights of

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the various parties.” Oggi Trattoria & Caffe, Ltd. v. Isuzu Motors Am., Inc., 865 N.E.2d
334, 340 (Ill. App. Ct. 1st Dist. 2007).
Lateef asserts that the following three statements on the website each constitute
a “positive assertion of fact”:
•

Nature Made, manufactured by Pharmavite LLC, is 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; and

•

Vitamin B-12 supplements are recommended . . . for vegetarians and vegans who
avoid dietary sources rich in Vitamin B-12.

•
The latter two statements identified by Lateef are not actionable because they
contain no assertion of fact concerning the presence or absence of gelatin in its dietary
supplements. Nor may the first statement serve as the basis of a claim for breach of
express warranty. While the statement purports to make a “guarantee,” it makes no
reference to either the presence or absence of gelatin in any of Pharmavite’s products.
Rather, the declaration merely directs interested consumers to the bottle. This lack of
specificity falls short of creating the kind of contractual rights on which a breach of
express warranty must be predicated. Oggi Trattoria & Caffe, Ltd., 865 N.E.2d at 340.
Therefore, Pharmavite’s motion to dismiss the claim for breach of express warranty is
granted.

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III.

Unjust Enrichment and Common Benefit Doctrine Claims (Count III)
Pharmavite’s unjust enrichment and Common Benefit Doctrine claims are also

dismissed, since neither can be maintained independently of the ICFA or breach of
express warranty claims.
CONCLUSION
For the foregoing reasons, Pharmavite’s motion to dismiss is granted.
Furthermore, because Lateef’s allegations and exhibits fail to support her claims, the
dismissal is with prejudice. See Ennenga v. Starns, 677 F.3d 766, 781 (7th Cir. 2012).

Charles P. Kocoras
United States District Judge
Dated: April 10, 2013

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