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Debernardis v. IQ Formulations, LLC

United States District Court, S.D. Florida

March 29, 2018

JOSHUA DEBERNARDIS and CHRISTINA DAMORE, on behalf of themselves and all others similarly situated, Plaintiffs,
IQ FORMULATIONS, LLC, a Florida limited liability company, and EUROPA SPORTS PRODUCTS, INC., Defendants.



         THIS CAUSE comes before the Court on Defendant, IQ Formulations, LLC's Motion to Dismiss Class Action Complaint [ECF No. 28] (“IQ's Motion”) and Defendant Europa Sports Products, Inc.'s Motion to Dismiss Class Action Complaint [ECF No. 29] (“Europa's Motion”). The Court has reviewed the Complaint, the filings and argument of counsel, and the applicable law and is otherwise fully advised. For the reasons that follow, the motions to dismiss are granted.

         I. BACKGROUND

         Plaintiffs Joshua DeBernardis and Christina Damore (collectively, “Plaintiffs”) each pur-chased the dietary supplement Metabolic Nutrition Synedrex (“Synedrex”). According to the Complaint, Synedrex and another dietary supplement, Metabolic Nutrition E.S.P. (“E.S.P.”) (collectively, “Supplements”), contain MethylPentane Citrate, a stimulant commonly known as DMBA. Plaintiffs allege that DMBA is an illegal ingredient, rendering the supplements adulter- ated and misbranded for the purposes of the United States Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et seq. (“FDCA”) and violative of state consumer protection laws that incorporate the FDCA. Plaintiffs-a citizen of Illinois and a citizen of New York, respectively- bring suit against Defendant IQ Formulations, LLC (“IQ”), the manufacturer of the supplements, and against Europa Sports Products, Inc. (“Europa”), a distributor of the supplements.

         Federal law broadly prohibits “[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, tobacco product, or cosmetic that is adulterated or misbranded.” 21 U.S.C. § 331(a). A dietary supplement is considered “adulterated” if it “con-tains a dietary ingredient that . . . is a new dietary ingredient for which there is inadequate information to provide reasonable assurance that such ingredient does not present a significant or un-reasonable risk of illness or injury.” Id. § 342(f). A supplement containing a “new dietary ingredient”-that is, a dietary ingredient that was not marketed in the United States before October 15, 1994-may nevertheless be marketed and sold if:

(1) The dietary supplement contains only dietary ingredients which have been present in the food supply as an article used for food in a form in which the food has not been chemically altered[; or]
(2) There is a history of use or other evidence of safety establishing that the dietary ingredient when used under the conditions recommended or suggested in the labeling of the dietary supplement will reasonably be expected to be safe and, at least 75 days before being introduced or delivered for introduction into interstate commerce, the manufacturer or distributor of the dietary ingredient or dietary supplement provides the Secretary with information, including any citation to published articles, which is the basis on which the manufacturer or distributor has concluded that a dietary supplement containing such dietary ingredient will reasonably be expected to be safe.

Id. § 350b.

         Plaintiffs allege that DMBA is a new dietary ingredient that meets neither of the statutory exceptions of § 350b, and is thus adulterated pursuant to § 342(f). Plaintiffs argue that because the Supplements list DMBA as a dietary ingredient, they are likewise “misbranded” pursuant to § 343(a). See Id. § 343(a) (“A food shall be deemed to be misbranded . . . [i]f . . . its labeling is false or misleading in any particular . . . .”). Plaintiffs argue that by including DMBA as an ingredient on the Supplements' labels, IQ is implicitly representing that DMBA is an approved ingredient. Although the FDCA contains no private right of action, a number of state consumer protection laws incorporate the food labeling provisions of federal law and provide a mechanism for private suit. It is under these provisions of state law that Plaintiffs bring their Complaint.

         Plaintiffs allege five (5) counts: (1) Violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201, et seq., against IQ on behalf of a nationwide class; (2) Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1, et seq., against both Defendants on behalf of an Illinois subclass; (3) Violation of New York General Business Law § 349, et seq., against both Defendants on behalf of a New York subclass; (4) Fraud against both Defendants on behalf of the Illinois and New York subclasses; and (5) Unjust Enrichment against both Defendants on behalf of the nationwide class, or alternatively, the Illinois and New York subclasses. In each of these counts, Plaintiffs allege that they suffered economic injury because they would not have purchased the Supplements had they known that one of the ingredients listed on the labels was a new dietary ingredient that had not been approved by the FDA. Defendants moved to dismiss the Complaint arguing, inter alia, that Plaintiffs lack standing to bring this action. On March 27, 2018, the Court held a hearing on the motions.


         “[T]he doctrine of standing serves to identify those disputes which are appropriately re-solved through the judicial process.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). As the party invoking federal jurisdiction, Plaintiffs bear the burden of demonstrating that they have standing to sue. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990). The “irreducible constitutional mini-mum of standing” requires an “injury in fact” that is both “concrete and particularized, ” and “ac-tual or imminent, not conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). A plaintiff must also demonstrate “a causal connection between the injury and the conduct complained of, ” and “a likelihood that a court ruling in [the plaintiff's] favor would remedy [his] injury.” Id. As standing is a threshold determination, the plaintiff must “clearly . . . allege facts demonstrating” standing. Warth v. Seldin, 422 U.S. 490, 518 (1975). And given that this case is brought as a putative class action, “[t]hat a suit may be a class action . . . adds nothing to the question of standing, for even named plaintiffs who represent a class ‘must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20 (1976) (quoting Warth, 422 U.S. at 502).


         In their Complaint, Plaintiffs do not allege that they have suffered any physical injury, or that the products fail to work as advertised. Rather, they allege a purely economic harm: that because DMBA is a new dietary ingredient, which could not be lawfully sold, the products were worthless; and had Plaintiffs known this, they would not have purchased the supplements. While economic injury may, broadly speaking, be sufficient to confer standing, the question here is whether ...

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