Plaintiff Seeks Class Certification in Ginkgold Class Action Lawsuit

UPDATE 2: On Aug. 26, 2020, the maker of Nature’s Way supplements has agreed to pay out nearly $3.4 million to settle a class action lawsuit over claims about the effectiveness of its ginkgo biloba pills.

UPDATE: On Feb. 2, 2017, the court granted summary judgement in favor of the defendant, putting an end to the Nature’s Way Ginkgold class action lawsuit. 

Class certification has been proposed in a Ginkgold lawsuit that accuses the makers of the ginkgo biloba supplement of falsely promoting it as benefiting brain health in ways it actually doesn’t.

Plaintiff Kathleen Sonner submitted her motion for class certification last week, asking U.S. District Judge Virginia A. Phillips to let her represent a 10-state Class of persons who purchased Ginkgold and Ginkgold Max supplements.

Sonner argues the question of whether Ginkgold products actually provide the promised health benefits is the predominating question that all proposed Class Members share, making class certification appropriate.

On the same day, defendants Nature’s Way Products LLC and its parent company Schwabe North America Inc. countered with a motion for summary judgment.

They contend that Sonner’s entire Ginkgold class action lawsuit should go the way of other, similar claims brought under California law, claims the defendants say were “entirely baseless.”

Nature’s Way targets Sonner’s allegations that there is “no scientifically credible” evidence that Ginkgold products enhance mental health. The company argues these claims boil down to a “lack of substantiation” theory, a type of claim that government enforcement agencies may bring but that private civil litigants may not.

Citing studies it says supports its promotional statements, Nature’s Way claims that Sonner fails to demonstrate those statements are “provably false.”

Sonner began her Ginkgold class action lawsuit in July 2015, attacking statements by Nature’s Way that allegedly said the Ginkgold line of products could improve cognitive performance.

Promotional materials for Ginkgold products reportedly claim it can improve “memory, concentration, mental sharpness, and overall brain health” of persons who use them.

Sonner says these representations are false, designed to dupe consumers into buying Ginkgold products and paying more for them than they are actually worth.

She alleges that “[a]ll available, reliable scientific evidence demonstrates that the Ginkgold Products have no efficacy at all.”

The Ginkgold class action lawsuit slipped past Nature’s Way’s motion to dismiss in November 2015. The company argued that a change in its labeling implemented in 2013 made it uncertain which labeling was on the product Sonner purchased, and that Sonner therefore had no standing to sue over that labeling.

But Judge Phillips disagreed, finding that Sonner had stated plausible claims regardless of whether the product she purchased had the new labeling or the older version. The judge nevertheless barred Sonner from seeking injunctive relief, given that she was not likely to purchase Ginkgold products again.

If certified as proposed, the plaintiff Class will consist of all persons who purchased Ginkgold and Ginkgold Max products in California, Florida, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York or Washington from July 7, 2011 through the date notice is provided to the Class.

In the alternative, Sonner is proposing a smaller Class consisting of only California Class Members.

Sonner is represented by attorneys Timothy G. Blood, Thomas J. O’Reardon II and Paula R. Brown of Blood Hurst & O’Reardon LLP, and by Todd D. Carpenter of Carson Lynch Sweet Kilpela & Carpenter LLP.

The Ginkgold False Advertising Class Action Lawsuit is Sonner, et al. v. Schwabe North America Inc., et al., Case No. 5:15-cv-01358, in the U.S. District Court for the Central District of California.