NBTY Vitamins Class Action Blasts False “Made in the USA” Labeling

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A proposed class action lawsuit has been filed against NBTY Inc. accusing the vitamin manufacturer of falsely labeling its Ester-C brand and other vitamin supplements as “Made in the USA” when the products allegedly contain substantial ingredients sourced from foreign countries.

NTBY markets its vitamins and dietary supplements in major retail stores throughout the United States as well as on the Internet.

According to its website, NBTY (formerly Nature’s Bounty) owns at least 19 brands which market and sell an array of consumer products including Ester-C brand of vitamins, Immune CHARGE Gummies, Immune CHARGE Quick Disolve, 1000mg Tablets, Gummies 1000mg, Ester-C Plus Probiotics, Ester-C To Go, 500mg Tablets, and Ester-C with Vitamin D3.

Plaintiff Jennifer Sweat, a Florida resident, contends she regularly purchased NBTY’s Ester-C brand 500 mg tablets for personal and household use throughout 2015 and afterwards at a Wal-Mart store in Union County, Florida.

Sweat says that by placing g the American flag on both the front and back label of the vitamin bottles above the words “Made in the USA”, NBTY is deceiving consumers and gaining an unfair competitive advantage by inaccurately labeling it products, with the intention that Sweat and other consumers who wish to purchase products sourced in the United States.

“Plaintiff is … a patriotic American who prefers to purchase goods sourced in the United States rather than goods containing essential imported ingredients, and is willing to pay a premium for wholly American-sourced goods,” Sweat said in her complaint. “When an American consumer buys something to put in his or her mouth, that consumer would prefer that all of the ingredients being consumed come from the U.S. rather than China or other foreign countries.”

NTBY’s unqualified representation that its vitamin supplements are domestically sources violate the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and the Federal Trade Commission Act (FTCA), according to the class action lawsuit.

The Federal Trade Commission has defined the term “Made in the USA” to mean that the product is “all or virtually all” made in the United States.  The phrase “all or virtually all” means, according to the FTC, that “all signification parts and processing that go into the product must be of U.S. origin, that is the products should contain no—or negligible—foreign content.”

According to the proposed class action lawsuit, the labels of NBTY vitamins say “Made in the USA” without qualification and carry an American flag.  The labels also make an affirmative representation of the specific vitamins and the RDA percentages of those vitamins that are contained in the products.

Sweat claims that the NBTY’s supplements, contrary to its “Made in the USA” labeling, contain at least one essential ingredient that is foreign-sourced – vitamin C.

Since vitamins in commercial products are normally purchased as “packs” or groups of assorted vitamins, Sweat asserts that there is a high likelihood that any product containing vitamin C also contains other foreign sourced vitamins in addition to the foreign sourced vitamin C, the lawsuit states.

“The most the law would permit a company to do in these circumstances is to make a qualified representation such as Made in the USA of foreign and domestically sourced ingredients,” Sweat said in her complaint.

Sweat brings this action on her own behalf and on behalf of others similarly situated as a proposed multi-state class action lawsuit that would include Florida, California, Illinois, Michigan, Minnesota, Missouri, New Jersey, New York, and Washington.

She is seeking certification of the proposed multi-state class as well as an injunction ordering NBTY to cease labeling their products as “Made in the USA”.

Sweat is represented by Kristan B. Rivers and a team at Davis & Norris LLP.

The NTBY Vitamins False Labeling Lawsuit is Sweat v. NBTY, Inc., Case No. 3:16-cv-00940 in U.S. District Court for the Middle District of Florida.