Judge Tosses Nature’s Way Ginkgold Class Action Lawsuit

UPDATE: 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.

A federal judge has put an end to a class action lawsuit claiming that Nature’s Way ginkgo biloba pills were falsely advertised as able to improve cognitive health after finding the lead plaintiff couldn’t provide evidence to the contrary.

On February 2, U.S. District Judge Virgina A. Phillips granted summary judgment on all remaining claims brought by plaintiff Kathleen Sonner in the Nature’s Way Ginkgold class action lawsuit. The judge found that judgment in favor of defendants Nature’s Way LLC and Schwabe North America was proper, given the comparative weight of the parties’ scientific evidence and the flaws in Sonner’s allegations related to fraud and breach of warranty.

In her September 2015 Ginkgold class action lawsuit, Sonner alleged Nature’s Way and its parent company Schwabe North America made false representations about the health benefits associated with their products Ginkgold Advanced Ginkgo Extract and Max Advanced Ginkgo Extract Max.

Both products are formulations of EGb 761, an extract of ginkgo biloba. The defendants allegedly marketed EGb 761 as providing certain benefits for cognitive performance and brain health.

Contrary to their alleged representations, Sonner cited scientific studies that purportedly showed ginkgo biloba has no effect on brain function. She argued the defendant’s representations are false and misleading in a way that deceives consumers.

In November 2015, Judge Philips pared down the number of claims at issue after Nature’s Way filed a motion for dismissal.

On the current motion for summary judgment, Judge Phillips rejected Nature’s Way’s argument that Sonner does not have standing to bring claims that specifically address Ginkgold Plus, which she admits she never bought.

The judge noted that, legally speaking, a plaintiff can have standing to bring claims on behalf of Class Members who bought a different product if that product is substantially similar to the product the plaintiff bought. Here, the judge noted, Ginkgold and Ginkgold Plus are “essentially identical,” and the issues raised are the same for both products.

Sonner’s claim under the Wisconsin Unfair Trade Practices Act failed because Nature’s Way never made the representation she challenged in that claim. Sonner alleged she relied on the words “Clinical Ginkgo Extract” when purchasing the product, but later admitted those words did not appear on the product’s label.

Both sides offered expert scientific testimony. Judge Philips noted that after Nature’s Way offered studies that demonstrated beneficial effects of Ginkgold, Sonner failed to offer a “principled, supported critique” challenging each of those studies.

Without a more robust challenge to Nature’s Way’s scientific evidence, the judge concluded, no reasonable juror could conclude that there is no scientific support for the claims made on Ginkgold labeling.

On Sonner’s warranty claim, Judge Phillips said that Sonner did not show Nature’s Way had made any express warranty about Ginkgold. And without winning the “battle of the experts,” Sonner could not show that Nature’s Way breached any promises made in their advertising about the effects of Ginkgold.

In the same order, Judge Phillips denied the motion for class certification that Sonner filed back in September 2016, since the dismissal renders that issue moot.

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.