The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAVID FREIFELD, individually and on be-
half of others similarly situated,
Plaintiff, NO. 1:25-CV-09541
v. Judge Edmond E. Chang
VIVE ORGANIC, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
David Freifeld purchased wellness shots made by Vive Organic that claim to
provide an “Immunity Boost.” R. 1, Compl. ¶¶ 2, 13.1 But Freifeld alleges that the
shots cannot actually boost the immune system. Id. ¶ 22. So he brings a proposed
class action on behalf of purchasers of the wellness shots, alleging that Vive Organic
used false and deceptive advertising in violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act (for short, the Fraud Act), 815 ILCS 505/1 et seq.,
and similar consumer-fraud statutes in other states.2 Compl. ¶¶ 35, 45–67. Freifeld
also brings claims for breach of express warranty and unjust enrichment in violation
1Citations to the record are “R.” followed by the docket entry number and, if needed,
a page or paragraph number.
2These states are Massachusetts (Mass. Gen. Laws ch. 93A, § 1 et seq.), Michigan
(Mich. Comp. Laws § 445.901 et seq.), Minnesota (Minn. Stat. § 325F.67 et seq.), Missouri
(Mo. Rev. Stat. § 407.010 et seq.), New Jersey (N.J. Stat. § 56:8-1 et seq.), New York (N.Y.
Gen. Bus. Law § 349 et seq.), and Washington (Wash. Rev. Code § 19.86.010 et seq.).
of each state’s laws.3 Id. ¶¶ 68–88. Vive Organic moves to dismiss, arguing that
Freifeld’s claims are preempted by federal law and that he has failed to adequately
allege the claims. R. 25, Def.’s Mot. Because Freifeld fails to state a claim, the motion
is granted, although he is also granted leave to file an amended complaint.
I. Background
In evaluating this motion to dismiss, the Court accepts as true the Complaint’s
factual allegations and draws all reasonable inferences in Freifeld’s favor. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per cu-
riam). Vive Organic creates, markets, and sells wellness shots featuring an “Immun-
ity Boost” label on the packaging (see the below image for one example). Compl. ¶ 20;
id. at 8.
3The Court has subject matter jurisdiction over this case under the Class Action Fair-
ness Act, 28 U.S.C. § 1332(d)(2). There are more than 100 proposed class members. See id.
§ 1332(d)(5)(B); Compl. ¶ 38. Freifeld is a citizen of Illinois, Compl. ¶ 12, whereas Vive Or-
ganic is incorporated and has its principal place of business in California, id. ¶ 15. And the
amount in controversy plausibly exceeds $5,000,000, given the large proposed class size and
Freifeld’s request for punitive damages. Id. ¶¶ 35, 51, 67.
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Freifeld has purchased several different types of wellness shots sold by Vive
Organic. Compl. | 13. Freifeld alleges that he relied on the “Immunity Boost” claim
when purchasing the wellness shots. Id. { 14. He says that he paid a higher price for
the shots than he otherwise would have paid if there had been no claimed “Immunity
Boost”—and, indeed, he would not have bought the shots at all but for that claim. Id.
Freifeld now alleges that the wellness shots cannot actually boost a person’s
immunity. Compl. □ 22. He bases this conclusion on a Harvard Health Publishing
report that describes the unproven nature of immunity-boosting claims, id. J] 23-26;
R. 28, Def.’s Exh. A, Report, and a series of settlements between the Federal Trade
Commission (known widely as the FTC) and companies that made immune-system
claims about their products, Compl. ¶¶ 27–31. Because he contends that the shots
cannot offer the claimed “Immunity Boost,” Freifeld files this proposed class action
against Vive Organic, bringing claims for false and deceptive advertising, breach of
express warranty, and unjust enrichment. Compl. ¶¶ 45–88.
II. Legal Standard
Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only
include “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the de-
fendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).4 The Seventh Circuit has
explained that this rule “reflects a liberal notice pleading regime, which is intended
to ‘focus litigation on the merits of a claim’ rather than on technicalities that might
keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). At the same time, the Su-
preme Court instructs that “[d]etermining whether a complaint states a plausible
claim for relief will ... be a context-specific task.” Iqbal, 556 U.S. at 679. Claims alleg-
ing fraud must also satisfy the heightened pleading requirement of Federal Rule of
Civil Procedure Rule 9(b), but the Court does not address this requirement because,
as described below, Freifeld fails to state a claim under Rule 8(a)(2).
4This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).
4
“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to
state a claim upon which relief may be granted.” Hallinan v. Fraternal Ord. of Police
of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.” Iqbal, 556 U.S. at 678 (cleaned up). These allegations “must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The
allegations that are entitled to the assumption of truth are those that are factual,
rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.
III. Analysis
A. Preemption
Vive Organic first argues that Freifeld’s claims are preempted by the Food,
Drug, and Cosmetic Act, as amended by the Nutrition Labeling and Education Act of
1990 (call it the Labeling Act for short), 21 U.S.C. § 343-1(a)(5). R. 27, Def.’s Br. at 3–
7. As Freifeld points out, R. 38, Pl.’s Resp. at 6–7, preemption is an affirmative de-
fense, Bausch v. Stryker Corp., 630 F.3d 546, 561 (7th Cir. 2010). Defendants bear
the burden to prove an affirmative defense. Benson v. Fannie May Confections
Brands, Inc., 944 F.3d 639, 645 (7th Cir. 2019). Thus, “[a]ffirmative defenses do not
justify dismissal under Rule 12(b)(6). Moving for judgment on the pleadings under
Rule 12(c) is the more appropriate way to address an affirmative defense.” Id.
(cleaned up). So Vive Organic has asserted its affirmative defense using the improper
procedural vehicle. The Court will still evaluate the preemption argument, but
5
Freifeld’s claims will only be dismissed if he has pleaded himself “out of court” by
alleging (and thus admitting) the elements required for the defense. Id.
The Labeling Act provides that “no State or political subdivision of a State may
directly or indirectly establish … any requirement respecting any claim of the type
described in section 343(r)(1) of this title made in the label or labeling of food that is
not identical to the requirement of section 343(r) of this title.” 21 U.S.C. § 343-1(a)(5).
Thus, the Act expressly preempts any state law that imposes different requirements
on food labels than Section 343(r) of the statute.5 That section deems a food mis-
branded if its label “characterizes the relationship of any nutrient which is of the type
required … to be in the label or labeling of the food to a disease or a health-related
condition.” 21 U.S.C. § 343(r)(1)(B). But nutrient-based labels are allowed for dietary
supplements if the following requirements are met:
(A) the statement claims a benefit related to a classical nutrient deficiency dis-
ease and discloses the prevalence of such disease in the United States, de-
scribes the role of a nutrient or dietary ingredient intended to affect the struc-
ture or function in humans, characterizes the documented mechanism by
which a nutrient or dietary ingredient acts to maintain such structure or func-
tion, or describes general well-being from consumption of a nutrient or dietary
ingredient,
(B) the manufacturer of the dietary supplement has substantiation that such
statement is truthful and not misleading, and
521 U.S.C. § 343-1(a)(5) includes an exception for “a requirement respecting a claim
made in the label or labeling of food which is exempt under section 343(r)(5)(B) of this title.”
This exception, concerning “food which is served in restaurants or other establishments in
which food is served for immediate human consumption,” does not apply here. 21 U.S.C.
§ 343(r)(5)(B).
6
(C) the statement contains, prominently displayed and in boldface type, the
following: “This statement has not been evaluated by the Food and Drug Ad-
ministration. This product is not intended to diagnose, treat, cure, or prevent
any disease.”
21 U.S.C. § 343(r)(6).
The parties agree that Vive Organic’s wellness shots are dietary supplements,
so the “Immunity Boost” claim is covered by this subsection of the Labeling Act. Def.’s
Br. at 4; Pl.’s Resp. at 8; see 21 U.S.C. § 343(r)(6). The question is whether the “Im-
munity Boost” claim meets the three statutory elements and is thus permitted under
the Labeling Act. If it is, then any state law that prohibits the claim would impose a
non-identical requirement from the federal law and would be preempted. See Bell v.
Publix Super Mkts., Inc., 982 F.3d 468, 484 (7th Cir. 2020) (explaining that the La-
beling Act preempts any state law claim alleging that a federally protected statement
is deceptive). To repeat, however, for Vive Organic to succeed on its affirmative de-
fense at the pleading stage, it must show that Freifeld pleaded himself out of court.
Benson, 944 F.3d at 645. So Vive Organic can only succeed if—taking all allegations
in the Complaint in the light most favorable to Freifeld—the Complaint shows that
the “Immunity Boost” claim complies with the three elements of Section 343(r)(6).
The parties focus on whether the Complaint supports the first element. See
Def.’s Br. at 5–7; Pl.’s Resp. at 7–10. This element permits so-called “structure/func-
tion claims,” which “describe[] the role of a nutrient or dietary ingredient intended to
affect the structure or function in humans” or “characterize[] the documented mech-
anism by which a nutrient or dietary ingredient acts to maintain such structure or
7
function.” 21 U.S.C. § 343(r)(6)(A); see Dervin v. NBTY, Inc., 607 F. Supp. 3d 831, 835
(N.D. Ill. 2022). But the Labeling Act prohibits “disease claims,” which “claim to di-
agnose, mitigate, treat, cure, or prevent a specific disease or class of diseases.” 21
U.S.C. § 343(r)(6) (emphasis added); see 21 C.F.R. § 101.93(g). Vive Organic argues
that “Immunity Boost” is a structure/function claim because it is akin to claiming
that the wellness shots “strengthen” or “support” the immune system, and the Food
and Drug Administration has endorsed claims like that (so long as the label does not
refer to any disease). Def.’s Br. at 5–7; see Regulations on Statements Made for Die-
tary Supplements Concerning the Effect of the Product on the Structure or Function
of the Body, 65 Fed. Reg. 1000, 1028–29 (Jan. 6, 2000). Freifeld responds that a claim
to “boost” immunity goes beyond the language endorsed by the Food and Drug Ad-
ministration, so “Immunity Boost” is not a permitted structure/function claim, and
Vive Organic cannot meet the first element. Pl.’s Resp. at 8–10.
But the Court need not decide this issue. Even if the Complaint does support
the first requirement for preemption, Freifeld did not plead himself out of court be-
cause no allegation addresses the second requirement of preemption.6 In particular
(and not surprisingly), Freifeld does not allege that Vive Organic has substantiation
that the “Immunity Boost” claim is “truthful and not misleading.” See 21 U.S.C.
6The third requirement for preemption—that is, the required disclaimer, see 21 U.S.C.
§ 343(r)(6)(C)—also does not appear in the Complaint’s images of the products’ packaging,
see Compl. at 2, 7–8. But Freifeld does not make this argument in his brief, see generally Pl.’s
Resp., probably because the wellness shots contain the required disclaimer somewhere on
their packaging.
8
§ 343(r)(6)(B). Indeed, the Complaint repeatedly alleges the opposite. The Complaint
cites a report that asserts that “there are no scientifically proven direct links between
diet or lifestyle and enhanced immune function” and that “there is no evidence that
taking extra amounts of any vitamin will boost the immune response.” Compl. ¶¶ 23,
25. Freifeld further alleges that the “Immunity Boost” claim is misleading. Id. ¶ 5.
Thus, the Complaint does not support—in fact, it directly opposes—the notion that
Vive Organic has substantiation for its “Immunity Boost” claim. The Court acknowl-
edges that Freifeld does not specifically contest the second element of Section
343(r)(6) in his response brief, but he does argue that there is no evidence to support
the “Immunity Boost” claim, see Pl.’s Resp. at 1–4, 10–11, which amounts to an argu-
ment that Vive Organic does not meet the substantiation requirement. Because the
Complaint does not show that the “Immunity Boost” claim meets this requirement to
trigger preemption, Vive Organic has not shown that the immunity assertion is pro-
tected by the Labeling Act. Freifeld’s state law claims are thus not preempted.
As described next, however, the Court dismisses the Complaint for failure to
state a claim, though the dismissal is without prejudice for now. If Freifeld files an
amended complaint that makes it past the pleading stage, then Vive Organic can
raise this preemption argument at summary judgment if discovery warrants it. (Alt-
hough Vive Organic could assert preemption in a motion for judgment on the plead-
ings under Civil Rule 12(c), because the particular affirmative defense that Vive Or-
ganic asserts is highly fact-dependent, judgment on the pleadings would likely be
inappropriate.) Specifically, the Court may consider a request from Vive Organic to
9
conduct targeted discovery on preemption and file an early summary judgment mo-
tion on this issue (but it is not crystal clear that that would be the most efficient way
forward).
B. Failure to State a Claim
Vive Organic alternatively argues that Freifeld fails to state a claim for false
or deceptive advertising under the Fraud Act, breach of express warranty, or unjust
enrichment. Def.’s Br. at 7–14. The Court addresses each claim in turn.
1. The Fraud Act
Freifeld alleges that Vive Organic violated the Fraud Act by knowingly misla-
beling the shots with the “Immunity Boost” claim. Compl. ¶¶ 53–67. To plausibly
state a fraud-based claim under the Act, Freifeld must allege that: (1) Vive Organic
committed a deceptive act or practice; (2) that the deceptive act or practice occurred
in the course of conduct involving trade or commerce; (3) Vive Organic intended that
Freifeld rely on the deception; and (4) the deceptive act caused Freifeld actual dam-
ages. Haywood v. Massage Envy Franchising, LLC, 887 F.3d 329, 333 (7th Cir. 2018).
Vive Organic argues that Freifeld has not satisfied the first element because he has
not plausibly alleged that the “Immunity Boost” claim is actually false. Def.’s Br. at
7–13.
Illinois law differentiates between actual falsity and lack of substantiation. See
Gredell v. Wyeth Lab’ys, Inc., 854 N.E.2d 752, 756 (Ill. App. Ct. 2006). Not surpris-
ingly, affixing a label on food or consumable products with false information is always
deceptive. See 815 ILCS 505/2 (identifying “false promise” as an unlawful deceptive
10
practice). But “a lack of substantiation is deceptive only when the … claim at issue
implies that there is substantiation for the claim made.” Bober v. Glaxo Wellcome
PLC, 246 F.3d 934, 939 n.2 (7th Cir. 2001). The Complaint does not allege that Vive
Organic implied that there was substantiation for its “Immunity Boost” claim on the
wellness shots’ packaging, see generally Compl., so Freifeld cannot advance an argu-
ment based on lack of substantiation (at least in this round of pleading). Instead, he
must plausibly allege that the “Immunity Boost” claim is actually false.
In the Complaint, Freifeld repeatedly alleges that the “Immunity Boost” claim
is false because products like Vive Organic’s wellness shots cannot boost immunity.
Compl. ¶ 22. But this is a mere conclusion, and conclusory allegations must be sup-
ported by factual claims. McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir.
2011). So to support the allegation, the Complaint relies on two sources: a report pub-
lished by Harvard Health Publishing and a series of settlements between the FTC
and companies that sell supplements. Compl. ¶¶ 22–31; Report.
But the Harvard Health Publishing report does not state that boosting immun-
ity is impossible, that is, the report does not say that an assertion of immunity boost-
ing must be categorically false. Instead, it merely notes that there is no evidence that
boosting immunity is possible:
“The idea of boosting your immune system is enticing, but the ability to do so
has proved elusive for several reasons.” Report at 26.7
7Page citations to the report are based on the original pagination of the article, not
the PDF page numbers.
11
“For now, there are no scientifically proven direct links between diet or lifestyle
and enhanced immune function.” Id.
“So far, there is no evidence that taking extra amounts of any vitamin will
boost the immune response or protect against infection in any way.” Id. at 28.
“[I]t is an unwarranted stretch of logic to claim that ingesting more of these
vitamins will translate into better immune function. There isn’t any evidence-
based science behind the concept of ‘boosting’ immunity beyond what our finely
tuned immune system already provides.” Id.
What’s more, several statements from the report could be read to suggest that it is
possible for supplements to boost the immune system. Immediately after describing
evidence of boosting immunity as “elusive,” the report states: “But that doesn’t mean
diet or lifestyle have no effect. … Although interesting results are emerging, thus far
they can only be considered preliminary.” Id. at 26. The report also notes that “a few
[herbal] preparations have been found to alter some components of immune function.”
Id. at 29. At best, then, the report supports a claim that “Immunity Boost” lacks sub-
stantiation, not that it is false. So the report is insufficient to support Freifeld’s alle-
gation of actual falsity. See Spector v. Mondelēz Int’l, Inc., 178 F. Supp. 3d 657, 665
(N.D. Ill. 2016) (explaining a failure to allege actual falsity where plaintiff “pleaded
no facts … showing that the [p]roducts do not provide ‘nutritious steady energy’ as
promised” (emphasis in original)).
Vive Organic also points out other problems with the report. For instance, the
report was published in 2010, making it over 15 years old. Def’s Br. at 9; Report at
12
3.8 And the report summarizes the state of research on boosting the immune system
without citing to any specific studies. Def’s Br. at 9; see generally Report. These fac-
tors alone are not dispositive, given the Court’s responsibility to construe factual al-
legations in the light most favorable to the plaintiff. If the report clearly stated that
immunity boosting is impossible, then it would likely support a plausible allegation
of falsity despite the report’s age and lack of specific citations. But these factors do
show that the report offers weak support for Freifeld’s allegation that the “Immunity
Boost” label is false.
Vive Organic also argues that the report is not relevant because it centers on
the immune system’s ability to combat disease, and as discussed earlier in the Opin-
ion, Vive Organic does not believe that “Immunity Boost” is a disease claim. Def.’s Br.
at 10–11. Because this issue is not dispositive for whether the claim is false, and the
Court has already rejected Vive Organic’s preemption argument, the Court declines
to decide at this stage whether “Immunity Boost” is a disease claim or a struc-
ture/function claim. But it is possible that Freifeld could convincingly argue that “Im-
munity Boost” is a disease claim, at least when the allegations are construed in his
favor at the pleading stage. Although “Immunity Boost” does not reference a specific
disease, it does carry a disease-fighting connotation. After all, immunity generally
means protection against a specific force; in the context of the human body, the term
8This citation is to the PDF page number of the exhibit.
13
suggests protection against disease. Thus, the report’s focus on disease is not an in-
dependent reason why it cannot support Freifeld’s falsity allegations.9
The FTC settlements also cannot support Freifeld’s allegations. In the Com-
plaint, Freifeld references a number of companies that have entered into settlements
with the FTC for products claiming positive effects on the immune system. Compl.
¶¶ 27–31. Freifeld argues that those settlements show the products’ labels were false,
supporting his allegation that Vive Organic’s “Immunity Boost” claim is false, too.
Reliance on the settlements is not a firm foundation on which to adequately
plead a claim. As an initial matter, settlements do not “vindicate a plaintiff’s theory
of liability.” Apex Mortg. Corp. v. Great N. Ins. Co., 972 F.3d 892, 898 (7th Cir. 2020).
Indeed, Federal Rule of Evidence 408 generally bars the use of settlements as evi-
dence of the merits of the underlying claim. Fed. R. Evid. 408(a)(1). It is true, of
course, that Rule 408 does not apply to pleadings, and it is possible for inadmissible
evidence to lend plausibility to allegations. See McMurray v. Improvenet, Inc., 2001
WL 561376, at *4–5 (N.D. Ill. May 22, 2001). But here, the six FTC settlements arose
9The Court also notes that the Food and Drug Administration’s guidance on the dif-
ference between structure/function and disease claims is not ironclad or binding. See Safeco
Ins./Liberty Mut. Sur. v. Dir., Off. Of Workers’ Comp. Programs, U.S. Dep’t of Lab., 103 F.4th
1285, 1289 (7th Cir. 2024) (“Regulatory preambles lack the force of law ….”). So it is possible
that even the endorsed verbiage—like “support” or “strengthen” immunity—could be false
and thus not permitted under the Labeling Act. It is also possible that “boost” is a false claim
even if the other verbiage is not. For instance, perhaps there is evidence that certain ingre-
dients can “support” or “strengthen” the immune system of an individual with immunity de-
ficiencies, but that it is impossible to “boost” immunity beyond the capacity of a regular im-
mune system. These are the sorts of allegations—with factual support—that might allow
Freifeld to plausibly state a claim in an amended complaint.
14
from different factual settings and different dietary supplements over a two-year time
period, the most recent from around 15 years ago. Compl. ¶¶ 27–30. Even if the set-
tlements raise an inference that the labels lacked substantiation, they do not support
the allegation that Vive Organic’s shots do not boost immunity. One of the cited press
releases is irrelevant because it does not mention immunity-boosting claims at all.
Id. ¶ 27(a).10 The remaining press releases characterize immunity-related claims as
unsupported by evidence rather than false. Id. ¶ 27(b), 28–30.11 And Freifeld offers
no citation for the proposition that the FTC views all immunity-boosting claims as
categorically false. So the FTC settlements do not lend much plausibility to the
10Fed. Trade Comm’n, Makers of Airborne Settle FTC Charges of Deceptive Advertis-
ing; Agreement Brings Total Settlement Funds to $30 Million (2008),
https://www.ftc.gov/news-events/news/press-releases/2008/08/makers-airborne-settle-ftc-
charges-deceptive-advertising-agreement-brings-total-settlement-funds-30.
11See Fed. Trade Comm’n, Rite Aid to Pay $500,000 in Consumer Refunds to Settle
FTC Charges of False and Deceptive Advertising (2009), https://www.ftc.gov/news-
events/news/press-releases/2009/07/rite-aid-pay-500000-consumer-refunds-settle-ftc-
charges-false-deceptive-advertising (claiming that there was “inadequate evidence” that Rite
Aid’s product could boost immune systems); Fed. Trade Comm’n, CVS to Pay Nearly $2.8
Million in Consumer Refunds to Settle FTC Charges of Unsubstantiated Advertising of
AirShield ‘Immune Boosting’ Supplement (2009), https://www.ftc.gov/news-
events/news/press-releases/2009/09/cvs-pay-nearly-28-million-consumer-refunds-settle-ftc-
charges-unsubstantiated-advertising-airshield (alleging that CVS had “no evidence” that its
product could boost immune systems, in contrast to its description of cold-fighting claims as
“false”); Fed. Trade Comm’n, Walgreens Will Pay Nearly $6 Million to Settle FTC Deceptive
Advertising Charges, https://www.ftc.gov/news-events/news/press-re-
leases/2010/03/walgreens-will-pay-nearly-6-million-settle-ftc-deceptive-advertising-charges
(2010) (describing Walgreens’s immune-system claims as “baseless”); Fed. Trade Comm’n,
FTC Investigation of Ad Claims that Rice Krispies Benefits Children’s Immunity Leads to
Stronger Order Against Kellogg (2010), https://www.ftc.gov/news-events/news/press-re-
leases/2010/06/ftc-investigation-ad-claims-rice-krispies-benefits-childrens-immunity-leads-
stronger-order-against (imposing restrictions on Kellogg because of its “questionable” im-
mune claims, in comparison to “false” cognitive-health claims).
15
allegations here. Thus, like the Harvard report, at most the settlements support a
claim that “Immunity Boost” lacks substantiation, but not that it is false.
To support his claim, Freifeld’s response brief cites other publications from
medical professionals that purportedly say that the immune system cannot be
boosted. See Pl.’s Resp. at 1–3. But when considering a motion to dismiss, courts gen-
erally do not look beyond the “four corners of the complaint.” Palda v. Gen. Dynamics
Corp., 47 F.3d 872, 875 (7th Cir. 1995). There are exceptions: courts may consider
“documents that are central to the complaint and are referred to in it.” Williamson v.
Curan, 714 F.3d 432, 436 (7th Cir. 2013). Thus, the Court has considered the Harvard
report and the press releases because they are central to and referenced in Freifeld’s
Complaint. But the additional sources introduced in his response brief were not ref-
erenced in the Complaint and thus cannot be considered to support his falsity allega-
tions.
Freifeld offers no other supporting factual allegations in the Complaint. For
instance, he does not cite any studies that tested the ingredients in Vive Organic’s
wellness shots and found them to have no effect on the immune system. See generally
Compl. Nor does he allege that he used the wellness shots but did not experience an
immunity boost. See generally id. Allegations like that might still not be enough. See
Spector, 178 F. Supp. 3d at 665. Because he fails to plausibly allege the first element
of a claim under the Fraud Act, Freifeld fails to adequately state a falsity claim.
Vive Organic argues that Freifeld’s claims for violations of other state con-
sumer-fraud statutes likewise fail because those statutes also require a showing of a
16
deceptive act or practice. Def.’s Br. at 7. The Court need not address the other state
statutes because Freifeld’s claims are dismissed, so the claims of other proposed class
members must also be dismissed (though without prejudice for now). See Turek v.
Gen. Mills, Inc., 662 F.3d 423, 425 (7th Cir. 2011) (“Only after a class is certified can
the suit survive dismissal of the named plaintiff’s claim.”).
2. Breach of Express Warranty
Freifeld also alleges that Vive Organic breached an express warranty in viola-
tion of Illinois law. Compl. ¶¶ 68–80. To plausibly state a breach of express warranty
claim, a “plaintiff must show a breach of an affirmation of fact or promise that was
made a part of the basis of the bargain.” Hasek v. DaimlerChrysler Corp., 745 N.E.2d
627, 634 (Ill. App. Ct. 2001). Freifeld says that the wellness shots’ packaging affirmed
that they possessed immunity-boosting qualities, Compl. ¶ 72, and that Vive Organic
breached this affirmation because the shots did not possess such qualities, id. ¶ 74.
But as just described, Freifeld fails to plausibly allege that the shots did not possess
immunity-boosting qualities. Thus, Freifeld fails to adequately state this claim. See
Spector, 178 F. Supp. 3d at 674.
3. Unjust Enrichment
Finally, Freifeld alleges that Vive Organic engaged in unjust enrichment.
Compl. ¶¶ 81–88. To plausibly state an unjust-enrichment claim, “a plaintiff must
allege that the defendant has unjustly retained a benefit to the plaintiff’s detriment,
and that defendant’s retention of the benefit violates the fundamental principles of
justice, equity, and good conscience.” HPI Health Care Servs., Inc. v. Mt. Vernon
17
Hospital, Inc., 545 N.E.2d 672, 679 (Ill. 1989). Freifeld claims that Vive Organic un-
justly retained a benefit by charging a premium price for a product that lacked its
premium feature: immunity-boosting qualities. Compl. ¶ 87. But again, Freifeld fails
to plead adequate factual allegations to support his claim that the shots did not pos-
sess immunity-boosting qualities. Thus, Freifeld fails to adequately state this claim.
See Ass’n Benefit Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 855 (7th Cir. 2007)
(“[W]here the plaintiff's claim of unjust enrichment is predicated on the same allega-
tions of fraudulent conduct that support an independent claim of fraud, resolution of
the fraud claim against the plaintiff is dispositive of the unjust enrichment claim as
well.” (emphasis in original)).
IV. Conclusion
Vive Organic’s motion to dismiss, R. 25, is granted. But because this was
Freifeld’s first complaint, the dismissal is without prejudice. Freifeld is granted leave
to file an amended complaint by September 18, 2026.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: September 4, 2026
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