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Fraud via omission of facts is a popular plaintiff lawsuit theory, but many of those lawsuits themselves suffer from the omission of plausibility and specificity.  In Womack v. Evol Nutrition Assocs., 2022 U.S. Dist. LEXIS 145754 (N.D.N.Y. Aug. 16, 2022), the plaintiff filed a purported class action alleging that a manufacturer of energy drinks failed to disclose that such drinks were “unsafe and addictive.”  According to the plaintiff, that nondisclosure constituted a violation of New York’s Unfair and Deceptive Trade Practices Act (UDTP).

The New York federal court dismissed the original complaint because it failed to allege that information regarding the product’s health risks and addictive nature was exclusively within the defendant’s possession, or even that the defendant had knowledge that the product was causing health problems for consumers.   The court granted leave to replead.  The plaintiff would get a second chance against the energy drink manufacturer. (By contrast, we find that one sip of an energy drink is enough for us.  The taste is usually sufficiently off-putting such that we won’t give the drink a second chance. But that’s just us.)

What was now before the court was the defendant’s motion to dismiss the first amended complaint.  That one, too, was dismissed, and the case was closed. Why was the first amended complaint fatally deficient?  

First, the plaintiff still failed to muster any facts showing that the defendant had exclusive knowledge of product risks.  The first amended complaint referred to safety and health complaints that were online and available to the public.  

Second, the plaintiff complained that the defendant failed to disclose that the product was not approved by the FDA.  But, even putting aside the fact that such nonapproval was hardly a secret, the plaintiff was essentially pursuing a private cause of action for marketing an unapproved product – which, in itself, is not provided for by the FDCA and is not actionable under the New York UDTP.  

Third, the plaintiff complained that the defendant obscured the presence of dangerous ingredients by using the chemical name, as opposed to the “common or usual name of a food” as required by FDA regulations.  Again, the FDCA does not provide for any private right of action to enforce that requirement.  Moreover, there was no evidence asserted suggesting that consumers could not discern the presence of the ingredient via the chemical name.  In fact, the plaintiff undercut this suggestion by citing a public petition where one consumer specifically addressed the safety of the ingredient via its chemical name rather than the common name that the plaintiff contended was so much more well known to consumers.  There was simply no basis to conclude that the presence of the ingredient was a mystery to consumers.

Finally, the plaintiff complained that the defendant hid the dosage of the ingredient by aggregating the product’s contents in a “proprietary blend.” The problem is that the plaintiff was not alleging any particular risk from the dosage.  The plaintiff did not allege how disclosure of the particular dose would have steered any consumers away.  

Thus, it was the plaintiff’s omissions from the first amended complaint — the analytical gaps and nonexistent private causes of action and baseless assumptions — that prompted the court to dismiss the case for the second and final time.