‘Only regulators may premise false advertising cases on an alleged lack of substantiation,’ CRN says in amicus brief

13-Apr-2018 - Last updated on 13-Apr-2018 at 15:14 GMT

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The Council for Responsible Nutrition, a dietary supplement industry trade group, emphasized that only regulators may premise false advertising cases on an alleged lack of substantiation in an amicus brief supporting defendants Costco Wholesale Corp. and supplement maker NBTY, INC.

In the class action lawsuit Korolshteyn vs. Costco Wholesale Corp.; NBTY, Inc., a consumer group alleged that claims made by the two companies about the health benefits associated with TruNature Ginkgo Biloba extract are false and misleading.

“The U.S. District Court for the Southern District of California dismissed the case in August 2017, finding that the plaintiff had not met their burden to demonstrate that the defendants’ claims were false or misleading,” Megan Olsen, assistant general counsel at CRN, told NutraIngredients-USA.

“CRN was pleased with the outcome of the case as it aligned with the legal arguments we made in an amicus brief filed in May 2017,” Olsen continued.

But this year, plaintiff Tatiana Korolshteyn appealed the district court’s decision to the US Court of Appeals for the Ninth Circuit, asking the appeals court to review the lower court’s decision and determine if it was correctly made, she added.

**Applying King Bio**

In its amicus brief, CRN opined that the District Court should apply the outcome of Nat’l Council Against Health Fraud, Inc. v. King Bio Pharm, Inc. from 2003.

Olsen described the outcome as one that recognized “an important distinction between regulators and private litigants in cases alleging deceptive advertising.”

In the amicus brief, CRN argued: “Private litigants, in contrast, must identify facts that would affirmatively prove that an advertising claim is false or misleading…Where plaintiffs have merely shown that the underlying science is weak or equivocal, courts have rejected claims by private litigants.”

“This distinction between regulators and private litigants is important because it recognizes the unique expertise and public health interest that regulators have in evaluating the complex nutrition science on which dietary supplement claims are often premised,” Olsen said.

“Allowing private parties to be the evaluators could create conflicting standards as to what claims about dietary supplements are permitted, which would harm consumers by limiting their access to truthful information about dietary supplement products.”