Wal-Mart Escapes Equate CoQ10 Supplement Class Action Lawsuit

A California federal judge on Monday allowed Wal-Mart Inc. to duck a proposed class action lawsuit accusing the big-box retailer of falsely labeling its Equate CoQ10 supplements with misrepresentations about their efficacy.

On June 23, U.S. District Judge Cynthia Bashant granted Wal-Mart’s motion to dismiss the Equate CoQ10 class action lawsuit without prejudice, allowing lead plaintiff Thamar Sanstisteban Cortina to file an amended complaint within 21 days.

Sanstisteban Cortina alleged in the Equate CoQ10 class action lawsuit that the supplement was mislabeled as having “3 times better absorption” and “clinical strength” because testing of the supplement allegedly revealed that it dissolved at the less-than-recommended rate of 75 percent advised by the U.S. Pharmacopeial Convention (USP).

Judge Bashant dismissed these claims, noting in her Order that the USP is not a binding authority in the supplement industry and that testing the rate at which an object dissolves in a laboratory is not necessarily the same as how it would be absorbed into the body.

Moreover, she wrote, “Plaintiff’s contention that for Equate CoQ-10’s labeling of ‘3 times better absorption’ to be valid, ‘competing products must provide just 13.8% absorption’ undermines, rather than supports their causes of action. Plaintiff fails to allege any evidence showing that competing products provide better than 13.8% absorption, even if her statement that absorption and dissolution are directly comparable is accepted as accurate.”

Since fraud requires a higher pleading standard, the plaintiff must “allege facts establishing a minimum standards for supplements,” Bashant said. However, the FDA does not regulate the supplement industry and therefore there is no legal standard and the “claims are too vague.” Other counts also failed as a result of the inability to establish an express warranty of what Equate CoQ10 would offer a customer.

The plaintiff is represented by Jack Fitzgerald of The Law Office of Jack Fitzgerald PC and Ronald A. Marron, Syke Resendes and Alexis M. Wood of the Law Offices of Ronald A. Marron APLC.

The Wal-Mart Equate CoQ10 Class Action Lawsuit is Thamar Sanstisteban Cortina v. Wal-Mart Inc., Case No. 13-cv-02054, in the U.S. District Court for the Southern District of California.