Amazon Weight Loss Drug Class Action Lawsuit Dismissed

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On Wednesday, a New York federal judge dismissed a proposed class action lawsuit accusing Amazon.com of failing to do its due diligence in preventing the sale of weight loss supplements containing a dangerous and banned ingredient known as “sibutramine” by third-party sellers.

In a Feb. 4 Order, U.S. District Judge Sandra L Townes granted Amazon’s motion to dismiss the class action lawsuit, after finding that lead plaintiff Dean Nicosia was bound to the arbitration provision included in Amazon’s “Terms and Conditions,” which he agreed to every time he purchased the weight loss supplement “1 Day Diet.”

Nicosia claims in the Amazon class action lawsuit that the 1 Day Diet  supplement secretly contained sibutramine, a heavily controlled substance which is only available by prescription because it has been linked to serious heart complications. In November 2013, 1 Day Diet was removed from Amazon within 24 hours of the FDA publishing a public notice asking consumers to cease using the weight loss supplement.

Nicosia filed the Amazon class action lawsuit in December of last year. A month later, Amazon filed a motion to dismiss the weight loss supplement class action lawsuit, stating that the plaintiff lacked standing because Amazon had banned sibutramine-containing supplements back in 2010. Amazon further argued that the class action lawsuit should be dismissed because of  the mandatory arbitration clause included in the standard Amazon purchase agreement and Terms and Conditions.

Judge Townes agreed, stating that every time Nicosia purchased the 1 Day Diet weight loss supplement, he was required to navigate past Amazon’s final checkout page, which includes the warning, “By placing your order, you agree to Amazon.com’s privacy notice and conditions of use.” This phrase, “conditions of use,” is allegedly displayed in a blue font and is hyperlinked Amazon’s conditions of use.

According to Judge Townes’ memorandum granting the dismissal of the Amazon class action lawsuit, this warning sufficiently incorporates the retailer’s conditions of use into the Amazon purchasing agreement because Nicosia and other potential Class Members who purchased the 1 Day Diet supplement could only place their order after viewing the clearly visible conditions of use hyperlink.

The judge said that by placing their Amazon order, Nicosia and other consumers agree to the conditions of use and were bound to those conditions. Additionally, in order to purchase this item, the plaintiff and the Class would have been required to create an account and agree to the terms and conditions, binding them to those conditions including the arbitration clause.

According to the judge’s Order:

“Upon review of Amazon’s initial sign-up page and final checkout page, this Court finds that Plaintiff was, at a minimum, on inquiry notice of the current terms of the Conditions of Use when making his purchases . . . Thus, he is bound to the mandatory arbitration clause and class action waiver contained in the 2012 Conditions of Use.”

However, the plaintiff disagreed, stating that he and other consumers could not be bound to these terms and conditions because Amazon as the retailer reserved the right to change its terms at any time. Nicosia further alleges that any Amazon contract relating to the sale of 1 Day Diet or other sibutramine-containing supplements is illegal because Amazon is not legally permitted to sell these kinds of products without a doctor’s prescription.

Judge Townes has stated that both of Nicosia’s issues are reserved for future arbitration with Amazon.com Inc.

Plaintiff Nicosia is represented by Joseph S. Tusa of Tusa PC, Peter D. St. Phillip Jr. and Scott V. Papp of Lowey Dannenberg Cohen & Hart PC, Timothy G. Blood and Paula M. Roach of Blood Hurst & O’Reardon LLP and Gregory S. Duncan.

The Amazon Weight Loss Drug Class Action Lawsuit  is Nicosia v. Amazon.com Inc., Case No. 1:14-cv-04513, in the U.S. District Court for the Eastern District of New York.