By ELIZABETH WARMERDAM
SAN FRANCISCO (CN) – A federal judge dismissed claims that the maker of the Dexatrim weight-loss supplement concealed the use of a hazardous chemical ingredient.
U.S. District Judge Charles Breyer said lead plaintiff Joanne Arroyo had failed to make specific claims about the product’s danger or about consumer reliance on statements or omissions from the manufacturer when purchasing Dexatrim.
Arroyo claimed that Chattem Inc. deceived her by promoting the weight-loss supplement as “safe, healthy and appropriate for consumption.”
Chattem allegedly failed to disclose that Dexatrim contains a particularly dangerous type of chromium called hexavalent chromium. She alleged that credible scientific and medical authorities have identified this chromium as a dangerous chemical that gives rise to diseases such as lung cancer, emphysema and dermatitis when ingested by humans.
Dexatrim’s website and product packaging did not list hexavalent chromium as an ingredient, nor did they warn consumers of its presence, Arroyo said. If Chattem had disclosed the presence of hexavalent chromium, consumers allegedly would not have purchased Dexatrim Max Complex 7 or other Dexatrim-brand products.
Arroyo brought the putative class action suit against Chattem in April, alleging negligent misrepresentation, fraudulent concealment, violation of California’s Consumers Legal Remedies Act and violation of California’s Unfair Competition Law.
Chattem moved to dismiss all claims, which the court granted with leave to amend. After Arroyo advanced the same four causes of action in an amended complaint three months ago, Chattem again moved to dismiss on the basis of failure to state a claim.
Breyer agreed Tuesday that the complaint could not move forward.
“While plaintiff makes general allegations that hexavalent chromium is unsafe, she does not plead with the required particularly what level of hexavalent chromium makes Dexatrim Max Complex 7 unsafe,” Breyer wrote. “Many foods and drugs on the market are not one hundred percent safe, and general allegations that a product’s safety is less than one hundred percent do not give rise to a lawsuit for fraud. If it did, then every consumer would be able to bring a suit for economic injury anytime the consumer became aware of an additional, unlabeled product risk after his or her purchase.”
Arroyo also failed to describe when, where or how she was exposed to or accessed Chattem’s promotion, advertising and marketing of Dexatrim products prior to her purchase. Arroyo also never alleged that she knew about the dangers of hexavalent chromium before her purchase, Breyer wrote.
“In fact, at oral argument, Plaintiff’s attorney conceded that plaintiff did not know anything about hexavalent chromium’s dangers prior to purchasing the product,” the decision states. “Thus, plaintiff cannot show that – even had she read it – she relied on the absence of hexavalent chromium on the label in making her decision to purchase Dexatrim. Further, defendant argued at the motion hearing, and plaintiff did not contest, that there is no regulation requiring disclosure of hexavalent chromium on the ingredients list.”
Breyer dismissed Arroyo’s complaint with prejudice, finding that she failed to sufficiently establish that the presence of hexavalent chromium on Dexatrim’s label, website or promotional materials would have affected her purchasing decision.