UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SYEDA F. LATEEF, individually and on )

behalf of all others similarly situated, )

)

Plaintiff, )

)

vs. ) 12 C 5611

)

PHARMAVITE LLC, OTSUKA, )

PHARMACEUTICAL CO., LTD. and )

OTSUKA AMERICA, INC., )

)

Defendants. )

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

Now before the Court is Defendant Pharmavite, LLC’s (“Pharmavite”) motion

to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the following reasons,

Defendants’ motion is granted.

BACKGROUND

Plaintiff Syeda F. Lateef (“Lateef”) is a resident of Cook County, Illinois, and a

practicing member of the Muslim faith. As a Muslim, Lateef adheres to certain dietary

restrictions that prohibit her from eating certain animal-based food products, including

pork and pork byproducts. Pharmavite is a Northridge, California-based limited

liability company. It manufactures, markets, and sells nutritional supplements

(“supplements”) – letter vitamins, flax seed oil, and herbal supplements, for example

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– under the Nature Made brand name. Lateef alleges that Nature Made supplements

contain pork and other animal-based byproducts, that Nature Made labels failed to list

these byproducts as an ingredient despite representations on the label and Pharmavite’s

website (“website”) that Pharmavite is a trustworthy company, and that Lateef

purchased a bottle of Nature Made supplements as a consequence of this alleged

deception.

In March of 2012, Lateef purchased a bottle of Nature Made Vitamin D3 1000

IU Tablets (“Vitamin D”) from a pharmacy retailer. Prior to purchasing the Vitamin D,

Lateef read the list of ingredients on the product’s label to ensure that the supplements

did not contain pork byproducts. The label listed eight ingredients, none of which were

included animal-based byproducts. Her decision to purchase the Vitamin D was based

on the absence of any animal-based ingredients on the product label. The complaint

maintains that the Vitamin D tablets were coated with gelatin. Gelatin is manufactured

in part with extractsfrom animal byproducts:specifically from cattle, chicken, and pigs.

Web-Based Marketing

Lateef alleges that the website attempts to bolster Pharmavite’s trustworthiness

to consumers. She highlights several lengthy passages from the website that seek to

accomplish this end. In relevant part, the website states:

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• 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 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.

• We make sure consumers can trust what they’re putting into their

body.

• When ingredients arrive, they are tested for identity, and we

continue verification at every stage of the manufacturing processto

ensure we meet or exceed industry standards . . . .

Lateef filed this four-count putative class action lawsuit on behalf of herself and

other Illinois residents who purchased Nature Made supplements. She claims that by

failing to represent that the supplements contained an animal-based byproduct,

Pharmavite is liable for three state law claims – (Count I) the Illinois Consumer Fraud

and Deceptive Business Practices Fraud Act (“ICFA”), 815 ILCS 505/2; (Count II)

breach of express warranty in violation of 810 ILCS 5/2-313; and (Count III) unjust

enrichment – and one federal claim for violating the Magnuson-Moss Warranty Act, 15

U.S.C. § 203 et seq. Pharmavite now brings this motion to dismiss pursuant to Federal

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Rule 12(b)(6). It contends that (1) Lateef’s state law claims are preempted by federal

law; and that (2) Lateef’s federal law claim fails to state a claim on which relief can be

granted.

LEGAL STANDARD

I. Preemption

Pharmavite urges the Court to assess its preemption argument under the legal

standard that courts employ when ruling on a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6). Federal preemption is an affirmative defense, upon which the

defendant bears the burden of proof. Fifth Third Bank v. CSX Corp., 415 F.3d 741, 745

(7th Cir. 2005). However, Lateef raises no procedural disagreement with Pharmavite’s

motion, and the basis of Pharmavite’s preemption argument is easily divined from the

face of the complaint. The Court therefore proceeds to the merits of the motion.

Kyriakoulis v. DuPage Health Ctr., Ltd., No. 10 C 7902, 2011 U.S. Dist. LEXIS 63905,

at *3 (N.D. Ill. June 9, 2011) (citing Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir.

2003)).

DISCUSSION

I. Preemption of State Law Claims

Pharmavite contends that the Federal Drug and Cosmetic Act (“FDCA”), 21

U.S.C. §§ 301-309, the Nutrition Labeling and Education Act of 1990 (“NLEA”), 21

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U.S.C. § 343, and corresponding federal regulations preempt each of Lateef’s state law

claims. Specifically, it argues that the claims should be dismissed because they seek to

impose a duty to label going beyond what is required of it under federal law.

The Supremacy Clause of the Constitution empowers Congress to enact

legislation that preempts state law. U.S. Const. Art. VI, cl. 2; Chambers v. Osteonics

Corp., 109 F.3d 1243, 1246 (7th Cir. 1997). The preemption doctrine can be triggered

in three ways: through an express congressional statement defining the preemptive

reach of a statute (“express preemption”), Congress’s manifesting its intent to occupy

an entire field of regulation (“field regulation”), or if it is either impossible to comply

with both state and federal law or state law stands as an obstacle to the full

accomplishment of Congressional objectives (“conflict preemption”). Time Warner

Cable v. Doyle, 66 F.3d 867, 875 (1996).

Pharmavite contends that the regulation of labeling supplements is exclusively

a federal concern, that it complied with federal labeling requirements, and that Lateef’s

state law claims are preempted because they seek to impose a labeling obligation

different from what is required under the federal regulatory scheme. To assess

Pharmavite’s argument, we first delineate the federalscheme that its motion relies upon.

The FDCA regulates labeling and related claims with respect to food, drugs, cosmetics,

and medical devices. 21 U.S.C. § 301 et seq. The NLEA is a 1990 amendment to the

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FDCA that regulates nutrition content claims on food labels. 21 U.S.C. §§ 343(q), ®.

The NLEA contains an express preemption provision designed to ensure uniform

labeling of food products. Entitled “National uniform nutrition labeling,” the statute

prohibits states from imposing a labeling requirement to foods categorized under 21

U.S.C. §§ 343(c), (e), (i)(2), (w), and (x) if the state’s requirement is “not identical to

the requirement of” the NLEA. 21 U.S.C. § 343-1(a)(2). A state labeling requirement

is “not identical to” an NLEA requirement if it imposes a labeling obligation that is

inconsistent with the NLEA’s requirements. See 21 C.F.R. § 100.1(c)(4). Nutritional

supplements fall within the FDCA’s definition of “food.” See 21 U.S.C. § 321(ff). The

statutory scheme thus unambiguously deems the regulation of the labeling of the

supplements at issue an exclusively federal concern.

Pharmavite argues that the NLEA exempts it from listing gelatin as an ingredient

on itslabels. The NLEA exemptslabeling of “incidental additives;” extractsfrom other

food sources that contribute “no technical or functional effect,” and are present in the

labeled food at “insignificant levels.” See 21 C.F.R. § 101.100. Further, if an

ingredient contains two or more components, labeling the common name of the

ingredient complies with the NLEA. 12 U.S.C. § 343(i)(2). Pharmavite asserts that it

is exempted from listing on the label the presence of gelatin or animal-based byproducts

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because it is present in a small amount, and it provides “no technical or functional

effect” to the supplement.

Lateef agrees that her claims relating to Pharmavite’s labeling are preempted,

thus conceding thatshe cannot maintain a cause of action that would require Pharmavite

to comply with a duty that s inconsistent with what the NLEA requires. She disclaims

any desire to impose such a duty on Pharmavite to change any labeling requirement,

despite the multitude of allegations in her complaint devoted to Pharmavite failing to

list gelatin on its label. Lateef instead draws the Court’s attention to her allegations

pertaining to Pharmavite’s web-based marketing campaign, insisting thatshe seeks only

to enjoin Pharmavite “from falsely advertising that consumers can trust that

[Pharmavite] identifies every ingredient on a Supplement’s label.”

Although the complaint contains several allegations relating to Pharmavite’s

web-based advertising, Lateef cannot save her state law claims. First, her ICFA claim

relies entirely on Pharmavite selling Nature Made supplements “that contained pork or

other animal byproducts but failed to disclose the same on the products’ label.”

(emphasis added). This claim seeks to impose a duty that Lateef herself admits is

preempted. Accordingly, the motion to dismiss Lateef’s ICFA claim is granted.

Secondly, even if the Court were to rely only on her allegations relating to

Pharmavite’s web-based advertising, Lateef lacks standing to bring her state law claims

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under Article III of the Constitution. The Court has a duty to evaluate a claimant’s

standing to bring a claim sua sponte. See Mainstreet Org. of Realtors v. Calumet City,

505 F.3d 742, 744 (7th Cir. 2007). To establish standing, a plaintiff must demonstrate

that (1) she suffered an injury in fact; (2) the injury is fairly traceable to defendant’s

challenged conduct; and (3) a court’s favorable decision would redress the injury.

Bensman v. United States Forest Serv., 408 F.3d 945, 949 (7th Cir. 2005) (citing Lujan,

504 U.S. 555, 560-61 (1992)). To satisfy Article III’s “traceability” prong, a plaintiff

must establish “links in the chain of causation between the complained of injury and the

challenged conduct.” Sanner v. Board of Trade, 62 F.3d 918, 923 (7th Cir. 1995)

(quoting Allen v. Wright, 468 U.S. 737, 759 (1984)).

The complaint alleges that Lateef purchased the bottle of supplements after

reading the bottle’s label. She makes no allegation that she visited the website, knew

that it existed, or was aware of the statements on it. She thus fails to establish a causal

link between her injury – ingesting animal and pork-byproducts – and Pharmavite’s

web-based marketing. Lateef therefore fails to establish Article III standing. Her state

claims are dismissed.

II. Magnuson-Moss Warranty Act Claim

Pharmavite argues in its motion that Lateef fails to state a claim under the

Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. In her response brief, Lateef

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informs the Court that she no longer wishes to pursue her claim. Accordingly,

Pharmavite’s motion to dismiss is granted. See Bonte v. U.S. Bank, N.A., 624 F.3d 461,

466 (7th Cir. 2010) (failure to respond to an argument results in waiver).

CONCLUSION

For the foregoing reasons, Pharmavite’s motion to dismiss the complaint is

granted.

Charles P. Kocoras

United States District Judge

Dated: October 24, 2012

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