Last month we reported on Dorfman v. Nutramax, et al., a consumer fraud case targeting glucosamine chondroitin supplements under California’s Unfair Competition Law and Consumers Legal Remedies Act. That putative class action was brought against the manufacturer of the supplements, as well as retailers Wal-Mart and Rite-Aid. The plaintiff alleged that that the advertising by both the manufacturer and retailers claimed that the supplements were capable of reducing joint pain and protecting joint cartilage. The plaintiff’s action survived a motion to dismiss in large part because the judge found that the plaintiff presented sufficient evidence that the defendants knew or should have known that the supplements were ineffective for their stated purpose.
Earlier this week, a Florida plaintiff filed a similar putative class action against Walgreens. The case, Group v. Walgreen Co., was filed in the Southern District of Florida. The Group complaint alleges that Walgreens sold glucosamine chondroitin supplements with the “false promise and deceptive warranty” that these supplements “rebuild cartilage.” The plaintiff asserted a breach of warranty claim, as well as a claim under the Florida Deceptive and Unfair Trade Practices Act, which prohibits “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” This language, like that of the California consumer protection statutes implicated in Dorfman, is relatively broad.
In his complaint, the plaintiff devotes anearly four pages to setting out all the clinical studies that he alleges “have found that glucosamine and chondroitin, alone or in combination, are not effective in providing the represented joint health benefits.” In this way, the complaint doesn’t merely allege that Walgreens had no evidence to back up its health claims with respect to the supplement, but rather affirmatively argues that Walgreens ignored accepted science and made misleading claims. These allegations were similar to those made by the plaintiff in Dorfman, which the court in that case found sufficient to withstand defendants’ motion to dismiss.
While we have yet to see whether Group’s putative class will move forward in the Southern District of Florida, we have already observed similar cases moving through the California federal courts. Supplement manufacturers and retailers should remain vigilant about their advertising strategies, as these consumer fraud cases are not disappearing any time soon.