Mary Ann Nichols of Chicago has filed a federal lawsuit against the dietary supplement company NaturMed Inc., which is also known as Institute for Vibrant Living. Her suit alleges that the company violated federal and state advertising laws.
A federal judge decided against dismissing the class-action lawsuit against this company.
In the lawsuit, she accused the company of breaches of warranty and deceptive practices in the advertising of a drink supplement the company manufactures, All Day Energy Greens, after she found it did not achieve statements on the label that claimed it would increase energy and improve digestion.
The lawsuit asked for more than $5 million in damages.
In an amended complaint filed last year, Nichols alleged that the diet shake manufacturer, which is owned by Indianapolis-based Hammond, Kennedy, Whitney & Co. Inc. and has corporate offices in Arizona, was engaged in consumer fraud under Illinois and Arizona laws and breached state and federal warranty requirements.
She claimed that she bought a two-month supply of All Day Energy Greens in February 2016 for about $60. On the packaging, it was stated that it is “all natural,” “naturally increases energy,” “improves digestion” and “promotes acid/alkaline balance,” all of which she claimed “affects the structure of function of the human body.”
In addition, the lawsuit alleged that the product contained “excessive amounts of lead.” Nichols attached a letter to her complaint that was sent to NaturMed by an attorney representing a California nonprofit group called the Environmental Research Center. The letter notified NaturMed that ten of the company’s products, including the one Nichols bought, contained excessive levels of lead in violation of the California Safe Drinking Water and Toxic Enforcement Act.
Nichols also alleged the company lacked clinical support in claiming that its products affect the structure of function of the body and that the company’s representations that the product is safe and effective is misleading. She attempted to return the product but was rebuffed by the company, she claimed. She also has alleged that the company violated the Uniform Commercial Code and the federal Magnuson-Moss Warranty Act, which stipulates that companies that sell merchantable goods have an “implied warranty.”
NaturMed moved to dismiss the case for failure to state a claim on all counts. NaturMed’s argument was that the lawsuit should be dismissed because the claims are pre-empted by a provision in the Federal Nutrition Labeling and Education Act (NLEA).
In denying NaturMed’s motion, the U.S. District Court judge wrote that the NLEA pre-emption provision has been interpreted not to pre-empt state law requirements that mirror it.
Because NaturMed was put on notice by Nichols’s pre-suit attempt to return the product and the letter that she wrote as well as a 2012 notice regarding its lead content, no additional notice was necessary, according to the federal judge. Accordingly, the case will go on as directed by the federal district court judge and his opinion.
Nichols v. NaturMed, Inc., No. 16 C 7256 (U.S. District Court for the Northern District of Illinois).
Kreisman Law Offices has been handling dietary supplement injury cases, multidistrict litigation cases, pharmaceutical product defect cases, hernia mesh injury cases and catastrophic injury cases for individuals and families who have been injured, harmed or killed by the negligence of another for more than 40 years, in and around Chicago, Cook County and surrounding communities, including Kenilworth, Skokie, Oak Lawn, Melrose Park, Franklin Park, Glencoe, Glenview, Hanover Park, Harvey, Harwood Heights, Hickory Hills, Dixmoor, Countryside, Dolton, Crete, Steger, Palos Heights, Chicago (Beverly, Englewood, Washington Heights, Roseland, Pullman, Lake Calumet, Riverdale), Burbank and Franklin Park, Ill.
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