A new proposed class action suit against Amazon.com was filed recently in the US District Court, Northern District of California, by two firms, Just Food Law in Washington, DC, and Kuzyk Law in Los Angeles, CA.
The plaintiffs, Eric Li and Anita Medal, allege that Amazon sold products that lack the mandatory disclaimers, making the supplements unapproved drugs. The plaintiffs purport that Amazon injured them monetarily and exposed them to the risk of physical injury and bodily harm.
The 43-page suit alleges that Amazon failed to disclose that the allegedly illegal therapeutic dietary supplement drugs it promoted and sold had not undergone government review prior to their being released for marketing and sale. The plaintiffs assert these dietary supplements are actually illegal drugs because they are required to bear a disclaimer, as a structure/function claim appears on the label.
“Without the disclaimer, consumers are dangerously left with the misperception that products claiming to help their health in some way are therapeutic and safe, and reviewed and approved as such,” the complaint states.
Suit “has its work cut out for it”
“The suit certainly has its work cut out for it, as it has significant procedural and legal issues. The core allegation, that dietary supplements are per se illegal drugs if the mandatory dietary supplement disclaimer does not appear on every panel that bears a structure/function claim, doesn’t seem likely to succeed,” explained attorney Jennifer Adams, Partner, Amin Talati Wasserman. “The Food Drug and Cosmetic Act itself only requires that a product ‘prominently display’ the disclaimer. FDA has chosen not to enforce its own ‘every panel’ regulation, so a court seems likely to question why it should enforce a rule that FDA doesn’t, especially when the claims seem to be otherwise permissible structure/function claims. Beyond that, there are also severe defects with establishing standing, any injury, a class, and even Amazon’s own liability for the content of other companies’ labels and listings.”
The complaint stated that “Mr. Li purchased a multitude of illegal drugs masquerading as therapeutic dietary supplements from Amazon.com” during the class period from November 20, 2020 to June 9, 2020.
The “illegal drugs” include—but are not limited to:
- Nature’s Bounty Omega-3 Fish Oil
- 5-HTP Capsules — Extra Strength Serotonin Support
- Nature Made Magnesium Oxide Tablets
- Doctor’s Best Alpha-Lipoic Acid Caps
- Nutricost Acetyl LCarnitine 180 Capsules
“When they list some of the products that they're so concerned about, these couldn't be more normal, well-made supplements, from well-known companies," said Loren Israelsen, President of the United Natural Products Alliance. “I fail to see where the consumer injury or economic harm is."
Attorney archenemy of the dietary supplement industry
While most experts we spoke with found the suit to be frivolous, what did stand out is the attorneys representing the plaintiffs.
Maia Kats of Just Food Law is an attorney that one industry source referred to as "archenemy of the dietary supplement industry." Kats is the former Litigation Director for the Center for Science in the Public Interest (CSPI).
CSPI, founded in 1971, is a consumer advocacy organization with a high involvement in food-related matters. CSPI aren't exactly fans of the Dietary Supplement Health and Education Act of 1994 (DSHEA) or the overall supplement industry.
“With that being said, Kats has a long history of criticizing DSHEA and holding the industry in low regard,” said Israelsen.
The other attorney is Michael Braun, of Kuzyk Law, which specializes in the prosecution of complex class actions. Braun is local to the Northern District of California, a district that has proven to be fruitful for cases such as this.
To certify or not to certify
Looking ahead, our sources agree this suit is banking on a very technical set of issues—which could prove to be a tough class action to certify.
“They don't allege any personal injury, only economic injury, which is minor, basically the cost of whatever supplements they bought. So they're hoping they can get a judge in Northern California to certify this that allows them to get into discovery and get some publicity,” one industry source said. “Do I think this has Merit? No. Even FDA doesn't bother with these types of complaints.”
Whether the proposed suit gets certified or not, all eyes are on Amazon, who could react by increasing scrutiny enforcement of supplements on its platform.
Amazon did not respond to requests for comment.