No. 21-3150 ___________________________

Christine Vitello, on behalf of herself and others similarly situated

lllllllllllllllllllllPlaintiff - Appellant

v.

Natrol, LLC

lllllllllllllllllllllDefendant - Appellee ____________

Appeal from United States District Court for the Eastern District of Missouri - St. Louis ____________

Submitted: June 15, 2022 Filed: October 6, 2022 ____________ Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.* ____________ LOKEN, Circuit Judge.

The Missouri Merchandising Practices Act (“MMPA”) declares unlawful the use “of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in

* The Honorable Katherine M. Menendez, United States District Judge for the District of Minnesota, sitting by designation. connection with the sale . . . of any merchandise in trade or commerce.” Mo. Rev. Stat. § 407.020.1. The MMPA authorizes a private damage action by any consumer who “purchases or leases merchandise . . . and thereby suffers an ascertainable loss of money or property . . . as a result of the use . . . by another person of a method, act or practice declared unlawful.” § 407.025.1. The primary issue on this appeal is whether a pharmaceutical purchaser suffers an ascertainable loss caused by the seller’s misrepresentation of supporting clinical studies when the product’s packaging states that it does not provide the benefit the purchaser is seeking. The district court answered this question in the negative and, based on Christine Vitello’s discovery admissions, granted Natrol, LLC’s motion for summary judgment dismissing Vitello’s MMPA and unjust enrichment claims. Vitello appeals. Reviewing the grant of summary judgment de novo, we affirm. See Toben v. Bridgestone Retail Operations, LLC, 751 F.3d 888, 896 (8th Cir. 2014) (standard of review).

I. Background

A. The Transactions at Issue. Vitello was diagnosed with attention-deficit disorder (“ADD”) in 2004 and was prescribed Adderall to treat symptoms that included “[b]eing forgetful, disorganized, scatterbrained” and “[n]ot being able to retain anything.” Apart from isolated pauses to avoid negative side effects, Vitello used Adderall as prescribed for thirteen years, noticing a “pretty significant difference in memory and concentration.”

On June 22, 2017, Vitello saw Cognium, a “nutraceutical” manufactured by Natrol, on sale in Arnold, Missouri. Cognium, according to Natrol’s advertising, improves memory and concentration. Its packaging stated that Cognium is “powered by Cera-Q, a natural protein from silkworm cocoons,” and can improve “Memory Recall Efficiency” by 90% when taken twice daily for four weeks. The box claimed that “[n]ine clinical studies in adults, seniors and children showed statistically significant improvements in memory and cognition in 4 weeks or less when taken as

-2- directed.” The Cognium bottle also contained two disclaimers that frame the issue on appeal: first, below “Clinically Proven to Improve Memory and Concentration” statements, an FDA-mandated disclaimer for all nutritional supplements:

These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease. See 21 C.F.R. § 101.93(c)(2). Second, at the end of the “Supplement Facts” statements: “Consult your he