Performix Sued Over Dietary Supplement’s Missing Disclaimer

A California woman sued Performix LLC for its alleged improper distribution, advertisement, and sale of dietary supplement capsules intended to boost metabolism. Last Friday’s Eastern District of California complaint contended that the product does not contain the required disclaimers, thereby creating the false impression that it was subject to a governmental review and approval process and has therapeutic value.

The filing explained that the domestic market for dietary supplements has boomed since the onset of the COVID-19 pandemic. It cited information by a “leading market research firm,” calculating that vitamin, mineral, and supplement sales have risen 21% since the outbreak began.

According to the lawsuit, dietary supplements are also regulated by the federal government for consumer protection purposes under the Federal Food, Drug, and Cosmetic Act. In relevant part, the Dietary Supplement Health and Education Act of 1994 (DSHEA) mandates that such products comply with labeling requirements, including a disclaimer indicating that the supplement has not been approved by the U.S. Food and Drug Administration for therapeutic benefits.

The filing claimed that Performix’s SST Timed Release Metabolism product bears labels making statements that constitute an impermissible structure/function claim, yet none are accompanied by the requisite DSHEA disclaimer. As such, the consumer argued that she bought a product she mistakenly believed had received federal approval, and that she would not have purchased it had it been correctly labelled.

The complaint seeks to certify a nationwide class of purchasers and a California subclass. It asserted a California Unfair Competition Law claim and an unjust enrichment claim. For their alleged losses, the plaintiff and putative classes seek injunctive relief, damages, including punitive damages, and an award of their attorneys’ fees and costs.

The consumer is represented by Bursor & Fisher P.A.