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 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 nutritionalsupplements 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 IUTablets(“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, andwe continue verification

at every stage ofthe manufacturing processto ensure we meet or exceed industry

standards.

• Fromingredient 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 consumingNatureMade 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

ExpressWarranty;(Count III)Unjust Enrichment; and (Count IV) Attorneys’ fees under

the Common Benefit Doctrine. Lateef invokesthe Court’sjurisdiction 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

legalsufficiency ofthe 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-Shadowv. UnionNissan 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 arguesthat Lateef’sICFA 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 inferthat 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 asto 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’ssupplements. Barbara’s Sales, 879N.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 asthe basis of Lateef’s

ICFA claim. 

Lateef nevertheless urges that the statement, “Pharmavite . . . goes above and

beyond to guarantee to consumersthat 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 couchesLateef’sICFA claims underthe 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 ofthe 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 claimfor breach of express warranty underIllinoislaw, “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. 2dDist. 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

• VitaminB-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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