Obtaining the Dismissal of a Dietary Supplement Class Action

October 23, 2020

Class action lawsuits against dietary supplement companies have been on the rise in recent years, as plaintiffs’ lawyers look for ways to circumvent the Food and Drug Administration’s (“FDA’s”) prohibition on private actions under the Food, Drug, and Cosmetic Act (“FDCA”), and bring consumer class actions under state consumer protection laws. Plaintiffs’ lawyers have come up with increasingly creative claims challenging supplement companies’ labeling and advertising as well as the companies’ classification of products as dietary supplements. Even small “technical” violations of the law can lead to huge headaches for supplement companies trying to navigate an increasingly competitive landscape. A putative class action not only is expensive to defend but can have a devastating effect on a company’s brand and its business.

Epstein Becker Green has extensive experience defending dietary supplement companies in federal and state courts against class action lawsuits. For example, we recently won a significant victory for dietary supplement client Hi-Tech Pharmaceuticals, Inc. (“Hi-Tech”), in a putative class action filed in federal court in the Central District of California. The plaintiffs claimed that certain Hi-Tech supplements that they purchased from retailers contained ingredients (DMAA and DMHA) that were purportedly not safe for human consumption and therefore the products were adulterated under the FDCA. The plaintiffs sought to certify a nationwide class of purchasers of several different Hi-Tech products and asserted a number of claims under California and New York consumer protection laws. 

The Epstein Becker Green team, which included Jack Wenik, Theodora McCormick, David M. Prager, Robert Lufrano, and Mary T. Vu, moved to dismiss the case against Hi-Tech on the grounds that the plaintiffs’ claims were an attempted end-run around the FDA’s authority to regulate dietary supplements under the FDCA and the Dietary Supplement Health and Education Act of 1994. In the summer of 2020, the court granted our motion, holding that the plaintiffs’ claims—which were premised entirely on their contention that Hi-Tech’s products were adulterated—fell within the primary jurisdiction of the FDA and because the FDA had not made a final determination regarding the legality of the ingredients at issue, the plaintiffs’ Complaint would be dismissed. 

This victory came on the heels of another win that Epstein Becker Green helped secure for Hi-Tech, in a case brought in federal court in New York by a mixed-martial arts fighter who had alleged that Hi-Tech and another company sold him dietary supplements containing illicit anabolic steroids.