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Mountz v. Global Vision Products12/17/2003
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
The plaintiffs are purchasers of Avacor, a hair loss treatment extensively advertised on television, in print and on the Internet. Their pleading, in essence, portrays the marketing techniques for Avacor as the modern day equivalent of the sales pitch of a snake oil salesman, against which plaintiffs primarily seek to invoke Maine consumer protection statutes urged to be applicable because the seller receives orders for Avacor in, and ships its product from, the State of Maine. Although the complaint contains class action allegations, no motion yet has been made to certify a class.
Defendant Global Vision Products, Inc. ("GVP"), which markets Avacor, is a New York corporation with offices in New York. Defendant Anthony Imbriolo is GVP's president and founder. These two defendants move for dismissal of the complaint, and its class action allegations, upon the assertion that the complaint fails to state a cause of action (CPLR 3211 ), request summary judgment because they offer a money-back guarantee (CPLR § 3212), and seek an injunction restraining plaintiffs from litigating the same issues in other jurisdictions.
Defendant Gordon, who is further described below, also requests dismissal of the claims against him, albeit not by the submission of a formal cross motion for relief. Given that he made an earlier motion to dismiss the original pleading, which was denied with leave to renew in relation to the amended pleading, the court deems him also a moving party. It is noted that the court previously dismissed the claims raised against Derrike Cope, a race car driver endorsing Avacor as a part of the product's sales campaign, on jurisdictional grounds and the caption is amended to reflect such dismissal.
Background
Avacor is a trio of items together represented to be "all-natural," "herbal," "clinically proven," and "revolutionary" which includes a shampoo, "herbal based topical formulation," and nutritional supplement. It is beyond dispute that Avacor's topical solution actually contains minoxidil, the main active ingredient in Rogaine.
Plaintiffs assert the defendants' claim of "no known side effects" of Avacor is refuted by documented minoxidil side effects, which include cardiac changes, visual disturbances, vomiting, facial swelling and exacerbation of hair loss, among others. Plaintiffs urge Avacor is a drug within the meaning of 21 U.S.C. § 321 (g)(1)(B) and (p)(1), requiring United States Food and Drug Administration ("FDA") approval prior to distribution in interstate commerce under 21 U.S.C. § 335 (a). Further, given the nutritional and dietary supplement claims made on behalf of Avacor's nutritional pills, plaintiffs plead such pills fail to meet the substantive and disclaimer labeling standards 21 U.S.C. § 343 (r)(3), a subdivision of the Dietary Supplement Health Education Act.
The plaintiffs assert that the disclosure on the label that Avacor contains "2,4-diamino-6-piperidino-pyramidine-3-oxide," the chemical representation of minoxidil, is not a meaningful substitute for proper disclosure. On or about February 10, 2003, after plaintiffs filed this suit and after the composition of Avacor and the lack of the requisite product warnings came to the attention of the FDA, GVP announced that it would change the labeling to provide proper disclosure, give relevant warnings, and discontinue the claim the product was "all natural" and had a success rate of more than 90 per cent. The court has not been advised whether such changes have been implemented.
The amended complaint references these facts and f
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