The 8th U.S. Circuit Court of Appeals on Oct. 6 tossed out a suit against the makers of a non-FDA-approved nutritional supplement to treat memory issues, saying the lead plaintiff had failed to show a violation of the Missouri Merchandising Practices Act.
Plaintiff Christine Vitello filed a proposed class-action lawsuit in federal court in St. Louis after purchasing a “nutraceutical” supplement called Cognium, made by Natrol LLC. Vitello had taken prescribed medication for 13 years to relieve her attention-deficit disorder, but she quit “cold turkey” and instead used Cognium twice daily for two months. However, she said it didn’t help her memory or concentration.
The packaging for Cognium allegedly based its claimed effectiveness on nine clinical studies that showed improvements after four weeks’ use. Two of those studies, however, were later retracted.
The U.S. District Court in St. Louis granted summary judgment to Natrol, which the 8th Circuit affirmed. Judge James Loken wrote that Cognium’s label also stated its benefits weren’t approved by the U.S. Food and Drug Administration, that it was “not intended to diagnose, treat, cure or prevent any disease,” and that those taking prescription drugs should consult their doctor, which Vitello hadn’t done. As a result, he said, she couldn’t show that she had lost anything.
“Here, Vitello 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,” Loken wrote. “Thus, for Vitello, the actual value of the Cognium she purchased, and the value of Cognium without Natrol’s alleged marketing misrepresentations, was the same — as Vitello said in her interrogatory answers, ‘zero.’”
Judges Jane Kelly and Katherine M. Menendez, a judge from the District of Minnesota sitting specially in the case, concurred.
For similar reasons, the court also declined the suit’s claim of unjust enrichment. Loken added that Natrol had refunded the money Vitello spent on two bottles of Cognium, but she had refused to cash the check, which “might foreclose this claim.”
John Christopher Kress of the Kress Law Firm in St. Louis, an attorney for Vitello, didn’t return a call seeking comment. Natrol was represented by attorneys from the national law firm of Faegre & Drinker and locally by Bryan Cave Leighton Paisner.
The case is Vitello v. Natrol LLC, 21-3150.