Illinois court to oversee dozens of lawsuits related to alleged herbal supplements fraud

Dozens of putative class-action lawsuits have been consolidated before a federal judge in Illinois in connection with a dietary supplement investigation by New York Attorney General Eric Schneiderman.

Josh Long, Associate editorial director, Natural Products Insider

July 1, 2015

3 Min Read
Illinois court to oversee dozens of lawsuits related to alleged herbal supplements fraud

Dozens of putative class-action lawsuits have been consolidated before a federal judge in Illinois in connection with a dietary supplement investigation by New York Attorney General Eric Schneiderman.

John Darrah, a federal judge in Chicago with the Northern District of Illinois, is overseeing 35 cases that were filed across the country against Walgreen Co., Wal-Mart Stores, Inc., GNC Holdings, Inc. and Target Corp.

The judge has set Aug. 20 for an initial status conference, said Elizabeth Fegan, a partner in Chicago with Hagens Berman Sobol Shapiro LLP, a plaintiffs’ law firm that is involved in the litigation.

“In the interim, Plaintiffs’ counsel are working on organizing leadership of the action," she said Tuesday in an email.

Schneiderman revealed in early February that DNA testing found a number of herbal supplements sold in New York failed to contain labeled herbs and were tainted with fillers or contaminants such as asparagus, beans and pine. It wasn’t long before lawsuits began piling up against the four national retailers in connection with their products (Walgreens, Finest Nutrition brands; Walmart, Spring Valley; GNC, Herbal Plus; and Target, Up & Up).

Earlier this month, the U.S. Judicial Panel on Multidistrict Litigation consolidated 35 lawsuits that had been filed in 10 states: Arkansas, California, Florida, Kentucky, Illinois, Indiana, Massachusetts, Missouri, Ohio and Oregon. The panel also referenced more than 30 additional actions that are potentially related to the litigation.

In reliance on Schneiderman’s investigation, a 60-page complaint filed in the Northern District of Illinois is typical of the allegations in the class action litigation. The named plaintiffs, Robin Chrystal Hale and Kaitlyn Pirtle, claimed the retailers sold herbal supplements that failed to contain the labeled ingredients such as St. John’s wort, ginseng and garlic. Instead, the supplements contained substances that were not disclosed, the lawsuit alleged, “putting the health of their customers at risk."

Of the herbal supplements tested, only 21 percent of the results verified DNA from the plants matched the labels, Schneiderman’s office first announced in a Feb. 3 press release. Seventy nine percent of results disclosed there was no DNA matching the labeled content, or the tests confirmed contamination with other plant material, according to the release.

Botanical experts have questioned the reliability of the technology used by Schneiderman’s office to test botanical extracts because DNA may become lost or degraded during the extraction process.

“A single MDL [multidistrict litigation] is the most appropriate vehicle for resolving defendants’ common challenges to the validity of the DNA testing, the anticipated common third-party discovery involving the New York attorney general’s investigation, discovery of any common suppliers, and management of the competing putative classes," Sarah Vance, chair of the multidistrict litigation judicial panel, stated in the order.

In March, GNC announced an agreement with Schneiderman to resolve the investigation. The agreement acknowledged that Schneiderman’s office found no evidence that GNC had deviated from relevant federal regulations.

Schneiderman has not announced agreements with the other three retailers. Doug Cohen, a spokesman for Schneiderman, said the investigation remains ongoing.

GNC anticipated the agreement with Schneiderman would result in the dismissal of all claims against the company and indicated six cases had already been dismissed, according to the judicial panel’s order that was filed on June 9. In total, eight cases have been voluntarily dismissed against GNC, a company spokesperson, Laura Brophy, said. She declined further comment on the class-action litigation.

Representatives for Walmart, Target and Walgreens had no immediate comment on the pending lawsuits.

About the Author(s)

Josh Long

Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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