The proposed class action was filed in the US Central District of California Southern Division on behalf of a plaintiff named John Gatto. The defendants are International Vitamin Corporation and Nutra Manufacturing LLC. Prior to declaring bankruptcy, GNC sold its Nutra Manufacturing division to IVC.
The product in question is Triple Strength Fish Oil, sold under the GNC brand. In 1.5 grams of oil the Triple Strength product delivers 734 mg of EPA and 266 mg of DHA. The omega-3 fatty acids are delivered in ethyl ester form. GNC sells a three-month supply of the product for $39.99.
Suit alleges plaintiff misled by product’s label
The form of the product is the key element of the proposed lawsuit, as it alleges that in their ethyl ester form these ingredients have been irrevocably altered from their base forms and that the plaintiff was misled by the product’s label.
“Contrary to what is represented on the label, however, this Product is not fish oil, nor does it contain a single milligram of EPA or DHA. What was once natural fish oil has been subjected to a chemical process by which its molecular structure and constituent parts have been substantially transformed and irrevocably altered into a synthesized product that does not otherwise exist in fish, or nature,” the lawsuit says.
Expert: Much of omega-3s science rests on ethyl esters
Ethyl ester forms of fish oil have been on the market for decades, said expert Dr William S. Harris, PhD, head of the Sioux Falls, SD-based Fatty Acid Research Institute. Many of the more concentrated supplements on the market are offered in this form. And, Harris notes, so too are the pharmaceutical forms of the ingredient, meaning there is evidence for benefit from thousands of subjects in those studies.
“Much of the evidence of the benefits of omega-3s comes from research done with the ethyl ester forms,” Harris told NutraIngredients-USA.
Harris said while there are some abosportion differences between the ethyl ester and triglyceride forms of omega-3s, they are not enough to choose one form over another in terms of health benefits. Both forms can deliver EPA and DHA into the blood.
“I don’t think they are fundamentally different. And if you take the ethyl esters with food, they are absorbed pretty much as well as the triglyceride forms are,” he said.
Harry Rice, PhD, chief science officer of the Global Organization for EPA and DHA Omega 3s (GOED) concurred that both forms have a place in the market and both provide health benefits.
“It’s important to note that, regardless of whether the omega-3 form is a refined fish oil or an ethyl ester, the benefits of EPA and DHA for a wide range of health outcomes are well documented in the scientific literature,” Rice said.
Attorney: Lawsuit unlikely to be certified as class
Ivan Wasserman, a partner in the law firm Amin Talati Wasserman, said he doubts the lawsuit will find enough extra consumers to sign on to be certified as a class. This is especially true, he said, in that the suit does not claim that the plaintiff would not have derived a health benefit from the ethyl ester forms of the ingredient.
“While the complaint casts a wide net of allegations, missing is any allegation that the omega-3s in the product do not, as the label claims, support heart, brain, skin, eye and joint health. Presumably those benefits are the reel [sic] reason why most consumers purchase the product. The complaint argues that the individual plaintiff would not have paid as much for the product if he had known the facts as alleged in the complaint, but would the other purchasers in the proposed class have done the same? It will be hard to convince a court of that, and therefore at the end of the day this case may be like school in the summertime: no class,” he said.