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Tracey Lipton, On Behalf of Herself and All Others Similarly Situated v. Chattem

April 10, 2012

TRACEY LIPTON, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
CHATTEM, INC., DEFENDANT.



The opinion of the court was delivered by: Judge Feinerman

MEMORANDUM OPINION AND ORDER

Plaintiff Tracey Lipton brought this putative class action alleging that Defendant Chattem, Inc. sold her a weight loss product, Dexatrim, contaminated with a toxic substance, hexavalent chromium. The complaint, which alleges only economic injury and not physical injury, purports to set forth state law claims under the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1 et seq., and for intentional misrepresentation, breach of the implied warranty of merchantability, and unjust enrichment. Chattem has moved to dismiss the suit under Federal Rule of Civil Procedure 12(b)(1) for lack of standing and, alternatively, under Rule 12(b)(6) for failure to state a claim. Lipton has declined to defend her implied warranty of merchantability claim, Doc. 25 at 14-15, which accordingly is dismissed with prejudice. See Alioto v. Town of Lisbon, 651 F.3d 715, 720-21 (7th Cir. 2011); Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1040-41 (7th Cir. 1999). Chattem's motion otherwise is denied.

Background

The complaint's well-pleaded facts are assumed true on a motion under Rule 12(b)(1) and 12(b)(6), with all reasonable inferences drawn in Lipton's favor. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010); Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009); Patel v. City of Chicago, 383 F.3d 569, 572 (7th Cir. 2004). The following facts are set forth as favorably to Lipton as permitted by the complaint; no endorsement of these facts is intended at this juncture.

Chattem manufactures and sells Dexatrim, a product designed to cause weight loss. Doc. 1 at ¶ 9. Chattem advertises that Dexatrim "gives you the power to lose weight, curb binges, and keep you in control of your diet." Ibid. On its website, Chattem gives the following answer to the question, "Is Dexatrim safe?":

As with all dietary supplements, it is important to carefully follow the recommended dosage and thoroughly read the warning label before stating the regimen. Dexatrim is not an appropriate weight control aid for persons suffering from certain medical conditions. Please see our label information for each specific product . and consult your physician for further information.

Id. at ¶ 10. Dexatrim's packaging states that it is the "#1 Pharmacist Recommended Appetite Suppressant." Id. at ¶ 25.

In March 2010, ConsumerLab.com issued two reports on weight loss supplements. Id. at ¶¶ 11-12, 19-20. The organization reported that Dexatrim contained between 1.6 and 3.2 micrograms (mcgs) of hexavalent chromium. Id. at ¶¶ 17, 20. One of the reports states:

[Hexavalent chromium] is a more toxic form of chromium than the one our bodies require, which is trivalent chromium . . Hexavalent chromium does not occur in significant amounts naturally but is formed as an industrial by-product. . Ingesting large amounts of [hexavalent chromium] can cause stomach upsets and ulcers, convulsions, kidney and liver damage, and even death. [It] is also a carcinogen-it is the form of chromium implicated as causing cancers in the movie Erin Brockovich. While it should not normally be found in chromium supplements, it has been known to occur as a contaminant.

Legal limits have not been established for the amount of hexavalent chromium in supplements but the state of California is considering an aggressive public health goal limiting hexavalent chromium in drinking water to only 0.06 ppb-about 0.12 mcg per day. The California limit is based on a one in one million lifetime cancer risk extrapolated from studies in mice. [Dexatrim] contain[s] amounts of hexavalent chromium that would exceed the maximum amount one could be exposed to from daily intake of water under California's proposed limit. . Although it is hard to know the exact risks posed by these supplements, it seems prudent to avoid such exposure to hexavalent chromium.

Id. at ¶¶ 14, 18. The Center for Disease Control and Prevention ("CDC") raised similar concerns about hexavalent chromium, stating:

An increased risk of lung cancer has been demonstrated in workers exposed to [hexavalent chromium]. Other adverse health effects associated with [hexavalent chromium] exposure include dermal irritation, skin ulceration, allergic contact dermatitis, occupational asthma, nasal irritation and ulceration, perforated nasal septa, rhinitis, nosebleed, respiratory irritation, nasal cancer, sinus cancer, eye irritation and damage, perforated eardrums, kidney damage, liver damage, pulmonary congestion and edema, epigastric pain, and erosion and discoloration of teeth.

Id. at ¶ 22.

Dexatrim's promotional materials and labels do not disclose that it contains hexavalent chromium and do not set forth the adverse health effects associated with ingesting hexavalent chromium. Id. at ¶ 23. With respect to chromium-related substances, the packaging and labeling state only that Dexatrim contains "Chromium." Id. at ¶ 25. Lipton alleges that the packaging's statement that Dexatrim is the "#1 Pharmacist Recommended Appetite Suppressant," coupled with the lack ...


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