A federal court in Florida has dismissed without prejudice a number of claims in a putative class action alleging that Vital Pharmaceuticals, Inc., which makes and markets the dietary supplement VPX Meltdown Fat Incinerator®, has deceived consumers by claiming that it burns fat thus helping with weight loss. Karhu v. Vital Pharms., Inc., No. 113-60768 (U.S. Dist. Ct., S.D. Fla., order entered August 9, 2013). While the court ordered that a second amended complaint be filed no later than August 19, it dismissed with prejudice the plaintiff’s claim that the defendant breached an implied warranty of merchantability for lack of privity—a direct relationship between the parties.

The court notes that the plaintiff included in his first amended complaint information about the demand made on the company to cease making fat burning and comparison ad claims by the National Advertising Division (NAD) of the Council of Better Business Bureaus. The plaintiff also apparently cited a warning from one of the company’s scientists who said that Meltdown ingredients Synephrine and Synephrine HCI “are as useless as a screen door on a submarine.” Dismissing the complaint in its entirety because it was a “shotgun pleading” that did not indicate which facts applied to which causes of action, the court addressed the parties’ arguments to guide preparation of subsequent pleadings.

Among other matters, the court rejected the defendant’s claim that the complaint did not contain sufficient factual content to support the claims in that it relied exclusively on the NAD’s findings. According to the court, other factual allegations supported the claims. The court also refused to apply the primary jurisdiction doctrine, finding that its ruling on the claims would not interfere with either the Food and Drug Administration or Federal Trade Commission’s regulatory scheme. The court further determined that the action could proceed under Florida’s Uniform Trade Practices Act because the alleged fraudulent conduct took place in Florida, which is the company’s place of incorporation and where its principal place of business is located. The defendant had argued that the law should not apply because the plaintiff purchased and consumed the product in New York. The court concluded that the Florida law may apply to non-Florida residents “if the offending conduct took place predominantly or entirely in Florida.”