Case:
State of Minnesota,
by its Attorney General,
Hubert H. Humphrey III,
Plaintiff,
vs.
Carolyn McClendon,
Defendant.
VENUE
5. Venue is proper in Ramsey County pursuant to Minn. Stat.
(1994) because plaintiff’s cause of action arose in part
in Ramsey County.
FACTS
6. Defendant offers a health product named “Vitalium Plus”
for sale to consumers. This product contains germanium
sesquioxide (also known as “germanium”), a bio-available form of
the trace mineral germanium; and feverfew, an herb. Defendant
advertises a key ingredient of this product, “Germanium,” through
CompuServe, an on-line computer communication service.
7. In the on-line advertisement referred to in paragraph 6,
above (attached as Exhibit A), and in materials subsequently sent
through the United States mail, by defendant to consumers,
defendant makes false, fraudulent, misleading, incomplete and
unsubstantiated claims about the health benefits of Germanium,
including, but not limited to, the following:
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a. Germanium has powerful antioxidant properties,
helping fortify, protect, and strengthen the cells against
harmful free radicals;
b. Germanium greatly increases tissue oxygenation
throughout the body;
c. Germanium works with oxygen to maximize cell
through its specialized electron transfer ability, making
it an excellent energy booster;
d. Germanium is an effective pain reliever;
e. Germanium has been studied in clinical trials
involving medical diseases and conditions that include
rheumatoid arthritis, cancer, asthma, diabetes, liver
disease, cardiac disorders, eye diseases, headaches, heavy
metal toxicity, osteoporosis, chronic fatigue syndrome,
candida yeast infections, hepatitis, digestive disorders, and
ces chosen to be studied as a treatment for AIDS.
8. Defendant lacks adequate substantiation for each of the
claims in paragraph 7, specifically with respect to defendant’s
claims regarding studies about Germanium’s effect on certain
diseases. Such claims are misleading because they imply that
persons with AIDS and the other diseases listed above, may
benefit from taking Germanium, when in fact there is no adequate
substantiation for these claims, and when in fact Germanium may
be harmful in that it may cause irreversible kidney damage.
9. Further, defendant fails to disclose to potential buyers
of the product the material fact that there is an FDA ban on the
import of Germanium due to health concerns, and that Germanium
may cause irreversible kidney damage.
COUNT ONE
10. Plaintiff realleges the allegations contained in
paragraphs 1 through 9.
11. The Deceptive Trade Practices Act provides in part:
A person engages in a deceptive trade practice, when in
the course of business, vocation, or occupation, the
person:
(5) represents that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits,
or quantities that they do not have . . . or
(13) engages in any other conduct which similarly
creates a likelihood of confusion or misunderstanding.
12. By making unsubstantiated representations about the
health benefits of “Germanium,” and by failing to disclose
material information about the product, defendant has engaged in
multiple violations of the Deceptive Trade Practices Act, Minn.
Stat.
COUNT TWO
13. Plaintiff realleges the allegations contained in
paragraphs 1 through 12.
14. The False Statement in Advertisement Act provides in
part:
Any person, firm, corporation, or association who, with
intent to sell or in anyway dispose of merchandise,
securities, service, or anything offered by such person,
firm, corporation, or association, directly or
indirectly, to the public, for sale or distribution, or
with intent to increase the consumption thereof, or to
induce the public in any manner to enter into any
obligation relating thereto, . . . makes, publishes,
disseminates, circulates, or places before the public,
or causes directly or indirectly, to be made, published,
disseminated, circulated, or placed before the public,
in this state, in a newspaper or other publication,
. . . or in any other way, an advertisement of any sort
regarding merchandise, securities, service or anything
so offered to the public, for use, consumption, purchase
or sale, which advertisement contains any material
assertion, representation, or statement of fact which is
untrue, deceptive, or misleading, shall, whether or not
pecuniary or other specific damage to any person occurs
as a direct result thereof, be guilty of a misdemeanor,
and any such act is declared to be a public nuisance and
may be enjoined as such.
15. By placing before Minnesota consumers false, fraudulent,
and misleading advertisements about “Germanium” via CompuServe,
and through the U.S. mails, defendant has committed multiple
violations of Minn. Stat. { 325F.67 (1994).
COUNT THREE
16. Plaintiff realleentation,
misleading statement or deceptive practice, with the
intent that others rely thereon in connection with the
sale of any merchandise, whether or not any person has
in fact been misled, deceived, or damaged thereby, is
enjoinable as provided herein.
18. By making unsubstantiated claims regarding the supposed
health benefits of “Germanium,” and by failing to disclose
material information about the product, defendant committed
multiple violations of the Consumer Fraud Act, Minn. Stat.
WHEREFORE, plaintiff prays for judgment against defendant as
follows:
I. Declaring that defendant’s conduct as described above
violates the Deceptive Trade Practices Act, Minn. Stat.
{ 325D.44, subd. 1 (1994), the False Statement in Advertisement
Act, Minn. Stat. { 325F.67 (1994), and the Consumer Fraud Act,
Minn. Stat. { 325F.69, subd. 1 (1994).
II. Enjoining defendant and her employees, agents,
successors, and assigns from engaging in the violations mentioned
above.
III. Enjoining defendant and her employees, agents,
successors, and assigns from making any false or unsubstantiated
representations to consumers regarding the health benefits of
“Germanium.”
IV. Requiring defendant to disclose to consumers all
material information about “Germanium,” including but not limited
to, information about the FDA ban on the import of “Germanium,”
and the health risks related with taking “Germanium.”
V. Requiring defendant to make restitution to all consumers
injured as a result of defendant’s conduct as described in this
complaint and awarding redress and such other relief as the Court
finds necessary to remedy injury to consumers resulting from
defendant’s violations of the consumer protection statutes
identified in this complaint.
VI. Awarding plaintiff civil penalties against defendant in
the amount of $25,000 each per violation of law as provided in
Minn. Stat. { 8.31, subds. 1 and 3 (1994).
VII. Granting such other legal or equitable relief as this
Court deems just and proper, together with judgment against
defendant for investigative costs, disbursements, and reasonable
attorney’s fees incurred on behalf of plaintiff.
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This post was written by admin on December 18, 2008
