Class-Action Lawsuits following New York Attorney
General Investigations from 10 States Consolidated into Single Litigation
Results of the investigation by the New York Attorney
General (NY AG) into herbal dietary supplements, alleging that only 21% of the
products contained DNA from labeled ingredients, have spurred a flurry of
class-action lawsuits against the four retailers – GNC, Target, Walgreens and
Walmart – whose house-brand herbal products were tested. In June 2015, a United
States Judicial Panel on multidistrict litigation consolidated 35 lawsuits that
have been filed in 10 states before a federal judge in Illinois. The initial
status conference was held on August 20, 2015. During the conference, US
District Judge John Darrah, who is presiding over the cases, reportedly raised
concerns about the DNA barcoding approach used by the NY AG. According to the
proceeding transcripts, he showed interest in GNC’s independent testing and its
conclusions that perhaps the NY AG’s results may not have been accurate. The
judge encouraged the submission of the allegedly adulterated samples to testing
by an independent analytical laboratory that would be acceptable to both
parties.1 GNC, which entered into an agreement with the NY AG on
March 27, 2015, allowing the company to put its allegedly adulterated products
back on the shelves in the state of New York, has seen eight lawsuits against
the company voluntarily dismissed.2 No agreements have been reached
between the NY AG and any of the other three retailers.
Comment: The outcome of the lawsuits could
have far-reaching consequences for the dietary supplement industry. A victory
by the plaintiffs would lend credibility to the results of the investigation by
the NY AG that were obtained by misusing what is generally considered a
controversial DNA barcoding approach, and may prompt more calls for a
requirement to use DNA barcoding technology in the authentication of botanical
ingredients. On the other hand, if the retailers can show that their methods to
control the herbal supplement quality (including identity) are adequate, and
that their products contain what is claimed on the label, the current,
predominantly chemistry-based, authentication approach used by the dietary
supplement industry will have established a sound legal footing.
References
1. Long J.
Federal court encourages independent tests on supplements that NY Attorney General
probed. Natural Products Insider. August 28,
2015. Available at: http://www.naturalproductsinsider.com/blogs/supplement-law/2015/08/federal-court-encourages-independent-tests-on-sup/. Accessed
October 6, 2015.
2. Long J.
Illinois court to oversee dozens of lawsuits related to alleged herbal supplements
fraud. Natural Products Insider. July 1, 2015.
Available at: http://www.naturalproductsinsider.com/blogs/supplement-law/2015/07/illinois-court-to-oversee-dozens-of-lawsuits-rela/. Accessed
October 6, 2015.
