Christina Spicer  |  November 24, 2014

Category: Consumer News

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deer antler spray class action lawsuitA class action lawsuit accusing supplement maker Nutronics Labs Inc. of deceptively marketing the health benefits of a deer antler velvet supplement survived a motion to dismiss, according to an order issued by a California federal judge on Thursday.

Lead plaintiff Scott Burghardt alleged in a class action lawsuit filed in March of this year that Nutronics misleadingly marketed its deer antler supplements as helping consumers to “build lean muscle mass and speed … their recovery time,” “boost your energy levels” and “promote sexual performance and function by raising libido” when, according to the complaint, numerous scientific studies have shown those claims to be false.

The deer antler velvet supplement class action lawsuit alleges that scientific studies prove that the insulin-like growth factor one (IGF-1), the primary active ingredient in the supplement, is only effective when it is injected, not ingested in supplement form as instructed by Nutronics. Further, according to the class action lawsuit, even when the active ingredient is injected, its only known effects are to increase total protein and DNA content in tissues, not provide the “miracle benefits” claimed by Nutronics.

According to the deer antler velvet supplement class action lawsuit, Burghardt bought the deer antler velvet supplement off the Nutronics website for $120 in April of last year. He alleges he would not have purchased the supplement had he known that he wouldn’t experience any of the benefits promised by Nutronics. The plaintiff’s proposed Class includes California consumers who purchased the IGF-1 deer antler velvet supplement, including the Super Max 200,000ng, Maximum 100,000ng, Ultra Plus 25,000ng, Ultra 10,000ng, Starter Plus 5,000ng and Starter 3,000ng, all available in dropper or spray form.

Nutronics filed a motion to dismiss the deer antler velvet class action lawsuit, arguing that the claims were time-barred and the claims were not adequately pleaded. Last week, U.S. District Judge Jeffrey T. Miller issued an order disagreeing with Nutronics. Judge Miller wrote in his order that the plaintiff’s claims under California’s Consumers Legal Remedies Act (CLRA) were not time-barred because the plaintiff sought only equitable relief, not a monetary judgment. Judge Miller also retained the plaintiff’s claims under the Unfair Competition Law (UCL) because by successfully pleading his CLRA claim the plaintiff automatically stated a claim under the UCL.

Judge Miller also concluded that the plaintiff had adequate standing because it was likely he would purchase the deer antler velvet supplement again. “While this argument is better addressed in context of an evidentiary motion,” said Judge Miller, “courts addressing this issue reason that a plaintiff in a false advertising case retains standing to pursue injunctive relief as long as the products continue to be deceptively marketed and sold by the defendant.”

Judge Miller found that the plaintiff didn’t have to notify the company of the claim prior to filing the class action lawsuit because he was suing the company as a manufacturer, not a seller, of the supplement and therefore Nutronics’ argument that the breach of warranty claims should be dismissed failed. Judge Miller also rejected Nutronics’ argument that in order to bring the claims the plaintiff was required to “state with particularity the circumstances constituting the fraud or mistake.” Judge Miller found that this rule didn’t apply because the false advertising class action lawsuit was based in consumer law fraud, not common law fraud, and therefore didn’t require a showing of fraud.

Burghardt is represented by James R. Patterson of the Patterson Law Group APC and Todd D. Carpenter of the Carpenter Law Group.

The Nutronics Deer Antler Velvet Supplement Class Action Lawsuit is Burghardt v. Nutronics Labs Inc., et al., Case No. 3:14-cv-00606, in the U.S. District Court for the Southern District of California.

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2 thoughts onDeer Antler Velvet Supplement Class Action Lawsuit Survives Dismissal Bid

  1. Alex Jay says:

    It is nice to know that frivolous lawsuits are now getting recognized and that the plaintiff had to pay his own legal fees. Hope this teaches a lesson to people that sue with no credible basis or foundation. Beware if you are one of those types of people, because you may get stuck with a substantial bill from your attorney to pay yourself!

  2. nick romo says:

    This case against Nutronics Labs was dismissed with prejudice, each party had to bear there own attorneys fees

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