Do the plaintiffs’ lawyers smell blood in the water? This is indicated by a number of class action lawsuits recently launched against dietary supplement manufacturers alleging fraudulent practices in the sale of fish oil products.
These lawsuits, filed in California federal courts (a preferred jurisdiction for the plaintiffs ‘bar), are nearly identical in that they claim that the manufacturers’ fish oil products contain no fish oil. To date, plaintiffs’ class action lawyers have targeted well-known dietary supplements, as Dr. Tobias Omega 3 Fish Oil Triple Strength (from Mimi’s Rock) and Triple Strength Fish Oil from the GNC brand (from International Vitamin and Nutra Manufacturing). . More litigation could follow.
The allegations focus on the process used to make fish oil supplements – transesterification. Transesterification is a chemical process used to obtain fatty acid ethyl esters from fish oil by adding an alcohol catalyst to the fatty triglycerides.
The lawsuits claim that the transesterification process intrinsically leaves the finished supplement products devoid of the omega-3 fatty acids DHA or EPA. The plaintiffs also claim that the resulting omega-3 molecules in the finished product after transesterification differ from the naturally occurring omega-3 molecules in fish oil.
The lawsuits state: “After transesterification, fish oil is irrevocably converted so that it is no longer fish oil and therefore cannot be named or labeled as such.” As a result, the plaintiffs claim that these products are being sold to the public with false and misleading labels mislead who violate federal and state laws.
The lawsuits are still in the early stages, so their ultimate success remains to be seen. But the potential impact is considerable. Fish oil supplements form a large consumer market. In fact, the lawsuits total nearly $ 2 billion a year worldwide with an expectation of nearly $ 3 billion a year by the end of the decade.
Given the sheer size of the market, many nutritional supplement manufacturers may face copycat suits. And, should plaintiffs succeed in their theory that “after transesterification, fish oil is irrevocably converted into fish oil,” dietary supplement manufacturers may also have to worry that the Federal Trade Commission will pursue civil liability or even prosecute it an aggressive Justice Department considering criminal charges.
Supplement companies can take steps to mitigate potential litigation risks. A manufacturer should always review all claims (express or tacit) about products and ensure that they are reasonably and properly substantiated.
© 2021 Epstein Becker & Green, PC All rights reserved.National Law Review, Volume XI, Number 159