Judge Allows Ensure Muscle Health Class Action to Proceed on Third Try

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Judge Allows Ensure Muscle Health Class Action to Proceed on Third Try

By Anne Bucher

A California federal judge last week rejected a bid from Abbott Laboratories Inc. to dismiss a proposed class action lawsuit that accused the company of falsely advertising its Ensure health drinks to aging baby boomers, finding that the plaintiff had adequately pled that consumers could have suffered an economic loss.

The ruling is a success for the plaintiff, who had his complaint dismissed two times since it was originally filed in August 2012.

Plaintiff Michael J. Otto, 69, alleges in the Ensure class action lawsuit that the packaging of Ensure products is misleading because they state that they “help rebuild muscle and strength naturally lost over time,” but does not clarify that these results can only actually be attained through exercise. However, this claim was dismissed because the court found that Otto failed to show that the products were ineffective without exercise.

Otto’s remaining claim accused Abbott of deception by omission when it did not disclose on the product label that consumers must have a blood serum vitamin D level of at least 30 nanograms per milliliter before they could be expected to “rebuild strength” as advertised.

Ensure Clinical Strength and Ensure Muscle Health drinks are manufactured by Abbott and are marketed toward “people over 40 who are naturally losing muscle with age.” Each beverage contains a blend of vitamins, protein and Revigor, a special formulation of an amino acid metabolite. According to the Ensure class action lawsuit, Revigor has been shown to rebuild muscle strength only in people with a vitamin D level of at least 30 nanograms per milliliter. Otto claims that as many as 60 percent of the drinks’ target market fails to meet that requirement.

On Wednesday, September 11, U.S. District Judge Steven V. Wilson rejected Abbott’s assertion that Otto did not have standing in the Ensure class action lawsuit because he did not show that he was deficient in vitamin D.

“Defendant argues that since plaintiff cannot show he was vitamin D deficient, he received the ‘benefit of the bargain’ when purchasing the Ensure product because the product could, in fact, help him rebuild strength. Therefore, the argument goes, disclosure of Revigor’s vitamin D requirement would not have been material to plaintiff and thus plaintiff was not injured by the omission,” Judge Wilson said.

Judge Wilson noted that Otto did present evidence that his vitamin D levels were tested twice before he began purchasing the Ensure product. One test showed that his vitamin D levels were “low” and fell under the threshold for the drinks to help build muscle tone.

“Plaintiff then claims that, given this history of vitamin D deficiency (or borderline-deficiency), he would not have bought the Ensure product, or would have paid less for it, had he known that it would not work for people with a vitamin D deficiency,” Judge Wilson said when concluding that Otto had suffered an economic loss.

Otto first purchased the Ensure Muscle Health beverage in June 2011 after reading the product’s label. He subsequently purchased the beverage at least six times from stores in California. He initially brought the class action lawsuit on behalf of a statewide class and a nationwide class of consumers who purchased Ensure Muscle Health and Ensure Clinical Strength since August 14, 2008.

This is the third amended complaint Otto has brought before Judge Wilson, who has dismissed it two times since January 10, 2013.

Otto is represented by Roland Tellis and Mark Pifko of Baron & Budd PC.

The Ensure Muscle Health Class Action Lawsuit is Michael J. Otto v. Abbott Laboratories Inc., Case No. 5:12-cv-01411, in the U.S. District Court for the Central District of California.

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