Washington, D.C. – The Council for Responsible Nutrition (CRN) is fighting back against a private litigant’s claim that a dietary supplement company falsely advertised the benefits of its product.
CRN, trade association for the dietary supplement and functional food industry, submitted an amicus brief to the United States Court of Appeals for the 9th Circuit early this month. The brief revisits the 2003 landmark case, Nat’l Council Against Health Fraud, Inc. v. King Bio Pharm, Inc., which determined the standard that private litigants must meet to bring a dietary supplement false advertising lawsuit under California law.
The CRN is urging the court to uphold the standard set at that time.
According to the brief, in 2003, King Bio held that only regulators may premise false advertising cases on an alleged lack of substantiation. Private litigants, in contrast, must identify facts that would affirmatively prove that an advertising claim is false or misleading.
In this case, an individual litigant is claiming that a certain Gingko Biloba product sold at Costco is falsely claiming it “supports alertness & memory,” and can help with mental clarity and memory,” among other claims.
As stated in the lawsuit, lead plaintiff Tatiana Korolshteyn alleges she bought a bottle of TruNature Gingko based on the allegedly false representations on the product label and filed this lawsuit on behalf of herself and a class of consumers who purchased TruNature Gingko in California.
CRN states that this goes against the parameters set in the 2003 King Bio Pharm case. According to the trade association, if the 9th Circuit were to adopt the private litigant’s argument in this case, “it would allow for conflicting decisions about how companies must support dietary supplement claims, harming both dietary supplement companies and consumers who rely on their products.”
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