(CN) – A weight-loss drugmaker cannot dismiss claims that it concealed the use of carcinogenic hexavalent chromium in the product Dexatrim, a federal judge ruled.
Chattem says on its website that its weight-loss supplement Dexatrim “gives you the power to lose weight, curb bines, and keep you in control of your diet.” Its packaging boasts that it is the “#1 Pharmacist Recommended Appetite Suppressant,” according to the complaint.
The company faces a federal class action in Chicago after ConsumerLab.com reported that Dexatrim contains hexavalent chromium, the industrial byproduct implicated in the movie “Erin Brockovich.”
“Hexavalent chromium is a more toxic form of chromium than the one our bodies require, which is trivalent chromium,” the report states, as quoted in the complaint. … 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.”
Though Dexatrim’s packaging states that it contains “chromium,” it does not specify which kind.
Workers exposed to hexavalent chromium experience “an increased risk of lung cancer,” according to Centers for Disease and Control Prevention statistics quoted in the complaint.
Lead plaintiff Tracey Lipton says she bought Dexatrim numerous times since 2008. But Lipton says she “would not have purchased Dexatrim and exposed herself to the potential health problems associated with hexavalent chromium” if Chattem had warned her about the presence of hexavalent chromium in Dexatrim.”
U.S. District Judge Gary Feinerman refused to dismiss the complaint last week, finding that the allegations of financial loss impart standing to Lipton, who does not allege physical injuries.
“Lipton paid more for Dexatrim than she would have paid had she known it contained hexavalent chromium,” Feinerman wrote. “This is sufficient to establish standing.”
Illinois law provides damages for individuals injured by fraud.
“Pertinent here, benefit-of-the-bargain damages may be awarded to compensate purchasers of products who paid prices that were inflated by the defendant’s fraud,” the decision states. “Such plaintiffs may sue for the diminished value of the product – the difference between the product’s value if the misrepresentations had been true and the product’s true value.”