Athletic Supplement May Duck Labeling Claims

     (CN) - A class must amend claims that a Vitamin Shoppe supplement contains insufficient dosages of endurance- and bodybuilding ingredients, a federal judge ruled.
     Vitamin Shoppe manufactures the fitness training dietary supplement known as True Athlete Training Formula, and sells it across the country.
     Steven Hodges sued the company in Los Angeles last year, hoping to represent a class with claims that the product does deliver the promised results. He refiled a month later in New Jersey, where Vitamin Shoppe is based.
     "Serious muscle, endurance and performance support," the product label allegedly states. "That's what you get with True Athlete Training Formula. No filler. No fluff. No hype. Just the primary active ingredients needed to give you the advanced pre-workout support you want."
     Hodges said those statements are false, however, and led him to pay steep prices for the supplement on Vitamin Shoppe's website in December 2012.
     Though the store's website states that, when combined with other supplements, True Athlete will enhance muscle and recovery support, energy, and endurance, the "product does nothing to aid in this process," according to the complaint.
     One of the supplement's four active ingredients, L-Arginine Alpha Ketoglutarate, is "known to be useless" for a variety of physiological functions, the plaintiff said.
     Hodges further alleged that, while the other active ingredients may "nominally offer some of the claimed benefits, defendant knowingly underdoses" these compounds so as "to profit from the name recognition and efficacy claims associated with them."
     His complaint asserts violation of the New Jersey Consumer Fraud Act, breach of express and implied warranties, and unjust enrichment.
     U.S. District Judge Stanley Chesler dismissed the complaint for failure to state a claim on Jan. 15.
     "Apart from attacking the statements about the product in the broadest terms possible, the complaint does not point to where on the label or the website these benefits, as recited by plaintiff, are purportedly promised by defendant," Chesler wrote.
     The judge later added: "There is no indication that, as Hodges avers, Vitamin Shoppe promised that the product will 'build muscle mass, increase strength [and] build endurance.' The words used in the label do not match the words identified by plaintiff as a misrepresentation."
     There is also no support for the claim that the product lacks an "effective" amount of certain ingredients, the court found.
     "The implication that affirmative proof as to the effectiveness of an ingredient at one dosage renders it ineffective at some other, lower dose, as contained in the product's formulation does not state a prima facie Consumer Fraud Act claim," Chesler wrote.
     Hodges' breach of warranty and unjust enrichment claims failed as well, but he may amend his complaint, the ruling states.
     Though Vitamin Shoppe said there was no allegation that Hodges ingested the product and experienced disappointment with its underperformance, Chesler found that Hodge's alleged economic loss "is both particularized and actual: it claims harm to himself, not a third person, and regards a real, non-hypothetical transaction."