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Nichols v. Naturmed, Inc.

United States District Court, N.D. Illinois, Eastern Division

April 11, 2017

MARY ANN NICHOLS, Plaintiff,
v.
NATURMED, INC. d/b/a INSTITUTE FOR VIBRANT LIVING, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT W. GETTLEMAN JUDGE

         Plaintiff Mary Ann Nichols filed a five-count amended class action complaint against defendant based on her purchase of, and ultimate dissatisfaction with, one of defendant's products, All Day Energy Greens (“ADEG”). Plaintiff's amended complaint alleges: Breach of Implied Warranty under the Uniform Commercial Code (“UCC”) and the Magnus-Moss Act (Count I); Breach of Express Warranty under the UCC (Count II); Consumer Fraud under Illinois law (Count III); Consumer Fraud under Arizona law (Count IV); and Unjust Enrichment (Count V). Defendant moved to dismiss under Rule 12(b)(6) for failure to state a claim on all counts. For the reasons described below, defendant's motion is denied.

         BACKGROUND[1]

         Plaintiff purchased a two month supply of ADEG from defendant, an Indiana corporation with offices in Camp Verde, Arizona, for $59.99 in February 2016. Plaintiff alleges that ADEG was advertised, marketed and shipped from Arizona. Plaintiff further alleges that she made the purchase in reliance on the advertising and labeling of ADEG. The label states that ADEG “naturally increases energy, ” “improves digestion, ” is “rich in antioxidant superfoods, ” and “promotes acid/alkaline balance.” According to plaintiff, ADEG is sold at a premium price. Plaintiff attributes that premium price to the representations on ADEG's label. Plaintiff was dissatisfied with ADEG and attempted to return it, relying on defendant's “100% money back guarantee.” Plaintiff's attempts were unsuccessful. She was unable to obtain defendant's authorization to return the product and was not issued a refund. Plaintiff alleges that “defendants make it difficult for anyone to get through to them, thwarting efforts to return the ‘All Day Energy Greens' product.” Plaintiff further alleges that the representations on ADEG's label are claims that it affects the structure or function of the human body, and that the claims lack clinical support. Additionally, plaintiff alleges that “qualified experts” do not recognize ADEG as safe and effective for the stated uses and that defendant lacks substantiation that the representations are truthful and not misleading. Finally, plaintiff alleges that ADEG contains excessive amounts of lead, a fact that defendant has been aware of since 2012.

         DISCUSSION

         I. Legal Standard

         When ruling on a Rule 12(b)(6) motion to dismiss, the court accepts the complaint's well-pleaded factual allegations as true and draws all reasonable inferences in the plaintiff's favor. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004). The pleading must describe the claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds on which the claim rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The allegations must plausibly suggest that the plaintiff has a right to relief, raising the possibility above the “speculative level.” Id.

         This standard demands that a complaint allege more than legal conclusions or “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         II. Analysis

         A. Preemption

         Defendant first argues that plaintiff's claims should be dismissed because they are preempted by federal law, specifically the Nutrition Labeling and Education Act[2] (“NLEA”), 21 U.S.C. § 341, et seq. The NLEA does contain a preemption provision, which reads in pertinent part:

(a) Except as provided in subsection (b) of this section, no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce-
(5) any requirement respecting any claim of the type described in Section 343(r)(1) of this title, made in the label or labeling of food that is not identical to the ...

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