Christine Vitello v. Natrol, LLC, No. 21-3150 (8th Cir. 2022)
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Plaintiff saw Cognium, a “nutraceutical” manufactured by Natrol, on sale. Cognium, according to Natrol’s advertising, improves memory and concentration. Its packaging stated that Cognium is “powered by Cera-Q, a natural protein from silkworm cocoons,” and can improve “Memory Recall Efficiency” by 90% when taken twice daily for four weeks. The box claimed that “nine clinical studies in adults, seniors and children showed statistically significant improvements in memory and cognition in 4 weeks or less when taken as directed.”
Plaintiff filed a putative class action complaint against Natrol, seeking damages for herself and establishment of a National Class and Missouri Consumer Subclass. Plaintiff alleged that, prior to her purchases of Cognium, two of the nine clinical studies noted on its packaging had been retracted, including one for “data fabrication and falsification.”
With Plaintiff’s individual claims dismissed, the court determined the sole named plaintiff could not represent the purported class and dismissed the entire action. On appeal, Plaintiff argued the district court erred in granting summary judgment dismissing her MMPA and unjust enrichment claims.
The Eighth Circuit affirmed. The court explained that here Plaintiff purchased a product that expressly stated on the label it was “not intended to” do what she stated she purchased it for, serve as a substitute treatment for her prescription medication. Thus, for Plaintiff the actual value of the Cognium she purchased, and the value of Cognium without Natrol’s alleged marketing misrepresentations was “zero.” The benefit of the bargain rule does not apply in this situation, so Plaintiff cannot prove that she suffered ascertainable loss “as a result of” Natrol’s unlawful practice.
Court Description: [Loken, Author, with Kelly, Circuit Judge, and Menendez, District Judge] Civil case - Missouri Merchandising Practices Act. Plaintiff, who purchased defendant's memory aid product "Cognium," alleged defendant violated the MMPA by failing to disclose the retraction of two of the nine clinical studies defendant claimed supported Cognium's advertised memory and cognition benefits; the issue was whether plaintiff suffered an ascertainable loss of money or property when she failed to experience the benefits; at the time of the transaction, plaintiff was aware that Cognium was not meant to serve as a substitute for the physician-prescribed Adderall she had been using to treat her ADD; since plaintiff never bargained for Cognium as a replacement for Adderall, she cannot have lost that purported benefit when Cognium failed to do something it had never purported to be able to do; the actual value of Cognium she purchased, and the value of Cognium without defendant's alleged marketing misrepresentatio,n was the same - zero; unjust enrichment claim rejected.
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