Plaintiff alleges that, before he bought defendant’s bodybuilding supplements, he read and relied on the supplements’ labels (“Every ingredient in this formula is in a dose use[d] in clinical studies and my own gym to produce significant gains in size, strength and endurance” and the listed ingredients “in full research backed doses, are in this bottle”) but that, contrary to the labels’ promises, the majority of the listed ingredients are not properly dosed, have no scientific backing, and/or have simply been found to be completely ineffective. Plaintiff’s complaint adequately states claims for fraud and unjust enrichment.
The court denies defendant’s motion to dismiss plaintiff’s fraud and unjust enrichment claims. The court grants the motion to dismiss plaintiff’s breach of warranty, negligent misrepresentation, and intentional misrepresentation claims.
Where plaintiff does not allege that he provided notice of his express and implied warranty claims to defendant prior to the filing of this action, plaintiff’s warranty claims are dismissed pursuant to S.C. Code Ann. § 36-2-607(3)(a). The court rejects plaintiff’s assertion that notice is not required because defendant is a manufacturer rather than the direct seller of the products that plaintiff purchased; plaintiff fails to cite to any South Carolina authority to support this position, and the non-controlling cases plaintiff cites are distinguishable.
Plaintiff does not deny that his negligent and intentional misrepresentation claims arise out of an alleged contractual relationship with defendant or that his alleged losses are purely economic, however, he contends that the economic loss rule does not bar his claim. He maintains that he has a special relationship with defendant under the “industry standards exception” because defendant failed to comply with FDA standards when it made deceptive statements. This court has previously rejected the “industry standards exception” to the economic loss rule under similar circumstances, and the court does so again.
Motion granted in part and denied in part.
Sandviks v. PhD Fitness, LLC (Lawyers Weekly No. 002-071-18, 14 pp.) (J. Michelle Childs, J.) 1:17-cv-00744; Harper Todd Segui and Nick Suciu III for plaintiff; Catherine Farrell Wrenn, Keith Munson, Ashley Lauren Vulin, Charles Morton English Jr., John Francis McGrory Jr. and Kaley Louise Fendall for defendant. D.S.C.