On August 10, the Honorable Ruth Bermudez Montenegro of the Southern District of California rejected Walmart’s motion to dismiss a complaint filed by plaintiff Edison Corpus last June. The lawsuit accuses the retail giant of unfair competition, false advertising, breach of express warranties and unfair enrichment – encouraging class members to sue for damages for purchases of unwanted products.
“Accepting all factual allegations in the Complaint as true and interpreting the defense with the point of view that is most favorable to the Plaintiff, the Court concluded that the Defendant’s Motion (Doc. 7) is DENIED,” the court concluded. “IT WAS HIGHLY BOOKED.”
Move to refuse
In its motion to dismiss, Walmart countered that the complaint was preceded by the Federal Food, Drug, and Cosmetic Act (FDCA) of 1983 and the subsequent Nutritional Labeling and Education Act (NLEA) of 1990, which determined that “state laws cannot be used to change or vary the standard of identity for regulated supplements that are ‘not identical’ to the FDA standard.”
The logic is that dietary supplement labeling should not be debated in court or decided at the state level but instead be determined by the Food and Drug Administration (FDA) – the federal agency charged with administering the FDCA and therefore dietary supplement labeling.
The plaintiffs argue that the federal preemption does not apply because the trans-esterification process denatures the product at the molecular level and because the defendants contradictory argue that “no FDA regulation establishes a ‘common or common name’ for fish oil” while also asking the court to conclude that the name a common or uncommon product is fish oil.
Matt Orr, a partner at Amin Talati Wasserman LLP with extensive experience in consumer class action in California, said that given the stage of the process and the conclusions a court must make in favor of the plaintiff, its decision on express preemption is not surprising.
“Courts can reach different conclusions about preemption once the defendant can present additional facts and evidence that can build on findings,” he told NutraIngredients-USA.
Lab-synthesized fish waste devoid of omega-3s?
Regarding the plaintiffs’ claim that Spring Valley fish oil is a laboratory-synthesized ethyl ester made from unmarketable fish waste that is mistaken for fish oil, Walmart countered that the chemical process used to make its supplements is simply a processing step that does not change its basic properties. .
As explained by the Global Organization for EPA and DHA Omega-3 (GOED), there is no difference in quality between the forms, and all are absorbed by the body to provide health benefits – whether natural triglyceride products (sometimes called 18:12 oils), ethyl ester products (which starts as natural triglycerides) or re-esterified triglyceride products (which undergo additional processing steps via ethyl esters). The problem is dosage.
“By esterifying triglyceride oils, companies can offer higher amounts of EPA and DHA in a smaller dose form, meeting today’s consumer demand for higher levels of omega-3s per pill,” Harry Rice, PhD, vice president of regulatory affairs and scientific at GOED, to NutraIngredients-USA. “The esterification process has no impact on the quality of the EPA and DHA contained in the final product.”
He added that the fish oil used in the omega-3 supplements did not come from “unmarketable fish waste” as the plaintiffs alleged and that in some cases such as salmon and tuna, the omega-3 oils were a value-added byproduct of seafood production. . . In the case of anchovy oil, anchovies are harvested mainly for use as fish meal.
“It’s no secret – and ‘positive’ when you consider the circular economy – that the fish oil industry uses the whole fish, including the parts that would not be consumed otherwise,” he said.
The plaintiffs also argue that the laboratory-synthesized ethyl ester (labeled as EE) is not what a reasonable consumer would expect when purchasing fish oil. Walmart said that calling a product a fatty acid ethyl ester would mean nothing to the sensible consumer.
Under ‘reasonable consumer’ standards, plaintiffs must demonstrate that the average person with no special knowledge of the product in question is likely to be deceived, says Dr. rice.
From his perspective, only someone with special knowledge of oil manufacturing would understand the technical differences between omega-3 ethyl esters and fish oil.
“[D]do consumers get what they pay for? The answer is definitely yes, because consumers get what they buy – EPA and DHA, the main long-chain omega-3 fatty acids found in fish,” he said. “It is not true that ethyl ester products no longer contain EPA and DHA.”
Orr agrees that consumers logically look for “fish oil” not “fatty acid ethyl esters” when shopping in the supplement aisle and accept the added content of good fish-derived EPA and DHA labeled as “fish oil,” “omega-3 fatty acids.” ‘ or ‘fatty acid ethyl ester’.
“Given that fact, it is hard to see how the consumer was harmed in general, or specifically, how the plaintiff could show that he received anything less than he paid in this case; namely EPA and DHA supplements,” he said.
Five cases of other fatty acid ethyl esters
Corpus v. Lawsuit Walmart was one of six recent class action complaints alleging that the ethyl esters of omega-3 fatty acids are not fish oil and therefore should not be labeled as fish oil. Three of these have been disbanded: John Gatto v. International Vitamin Corporation, Thomas O’Leary v. The Stop & Shop Supermarket Company (settlement) and Baines v. Nature’s Bounty. Still pending is Hernandez v. Mimi’s Rock Corp. and Rodriguez v. Target Corporation.
“It appears that the other two people may have been fired, leaving the case against Walmart, which was the last case filed,” said Dr. rice. “Given the similarities between the cases, there is no reason to believe that the case against Walmart will not ultimately be dropped.”
NutraIngredients-USA reached out to Walmart for comment but did not receive a response prior to publication.
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