physical harm to the public isn’t irreparable harm for competitor plaintiff

Nutrition Distribution, LLC v. Enhanced Athlete, Inc., 2017
WL 5467252, No. 17-cv-2069 (E.D. Cal. Nov. 14, 2017)

Defendants allegedly falsely advertised products containing
2,4-Dinitrophenol (DNP) to body builders, gym users, and the like. Defendants allegedly
promote it as an ingestible fitness supplement that increases fat loss, despite
the health dangers it poses. The plaintiff sells its own competing supplement,
and sued for false advertising and RICO violations. The court found that there
could be no preliminary injunction because the plaintiff hadn’t shown
irreparable harm.  After eBay, the court declined to presume
irreparable harm from falsity and materiality. Health harm to the public was third-party harm, relevant to the
public interest but not to whether the plaintiff had shown irreparable harm to
itself.  The plaintiff’s claim of lost
sales since the introduction of DNP into the market didn’t show a causal
connection between the two, and anyway lost sales could be remedied by money
damages.

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