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A class-action lawsuit against the makers of the controversial (and seemingly extinct) Lazy Cakes melatonin-laced brownies made a brief appearance in the Ninth Circuit earlier this week. The court, in an unpublished opinion, affirmed the dismissal of the class action lawsuit, yet reversed in part, and remanded with instructions to allow the plaintiff, Lee Cheramie, to amend the complaint.
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The brownies, which attracted the scrutiny of regulators and health professionals due to the cartoon Lazy Larry mascot, which some argued appealed to children, and due to the high melatonin content, disappeared after the Food and Drug Administration issued a warning letter to the company, stating that melatonin was not approved as a food additive.
A Grey Area: Foods, Beverages, and Dietary Supplements
HBB, LLC., the creators of Lazy Cakes, marketed the product as a dietary supplement, a move that was an obvious means of avoiding food safety regulations. While the FDA heavily regulates food additives, dietary supplements aren't nearly as regulated.
In a similar move, Monster recently reclassified their energy drinks as beverages, instead of dietary supplements, because beverages are even less regulated. Perhaps a Lazy Larry Lemonade is in order?
The dietary supplement gambit didn't work for Lazy Larry. The FDA warning letter noted that the product's marketing, including labeling the product "cakes" and "brownies," the ingredient list (flour, cocoa, butter, and the other typical fare found in brownies), and packaging (it sure looks like a brownie) indicate that the product "[was] represented as a conventional food," and therefore, it was subject to FDA oversight.
A Poorly Drafted Complaint
The problem with Cheramie's complaint, which lead to dismissal, is that it was apparently terribly drafted. The majority noted that it failed to plead the necessary element of misrepresentation or nondisclosure. As Chemarie conceded, the research regarding the side effects of melatonin is "inconsistent and inconclusive," and the packaging properly listed the amount of melatonin contained therein.
However, the district court erred by denying Chemarie's request for leave to amend without explanation, as it is not obvious that Chemarie could not amend his pleading to sufficiently state a claim for relief under California law.
Judge Kleinfeld, in a separate concurrence, was far more helpful to the plaintiff, after taking the time to criticize the poorly-drafted complaint:
"The complaint contains implausible allegations about the dangerous and 'life threatening' side effects of the brownies. I cannot tell whether Cheramie is pleading that a sleep aid was sold deceptively as a relaxation aid, or that the melatonin brownies are dangerous to health and are not labeled as such."
Nonetheless, Kleinfeld takes the time to elucidate exactly what would be required. He notes that melatonin is a sleep aid, while the brownies are marketed as a relaxation aid.
"Sleep and relaxation are different. People may relax by playing golf, paddling a canoe, or having cocktails with friends. Nobody sleeps while swinging a club or paddling a canoe, and ideally guests do not retire for a nap at a cocktail party."
Simple enough, especially now that a semi-retired senior judge has rewritten your complaint for you.