Wal-Mart Seeks Dismissal of Supplement False Labeling Class Action

Wal-Mart is seeking the complete dismissal of a putative false labeling class action lawsuit regarding the company’s private label Equate CoQ10 supplement.

According to the motion to dismiss the class action lawsuit, plaintiff Thamar Sanstisteban Cortina cannot allege violations of Arkansas consumer protection statutes because she is not a resident, the tests of the supplement’s absorption rate do not comply with federal requirements nor are they necessary and she did not suffer an injury that would satisfy the standard of pleading.

Cortina alleges that she used testing that is compliant with an industry association’s recommendations to obtain a certification label for the Equate CoQ10 supplement. However, Wal-Mart’s lawyers argued that the company did not seek that certification, nor do the tests that Cortina had done adequately support a false labeling claim since the U.S. Food & Drug Administration (FDA) does not consider them valid for federal regulations.

Specifically, the Equate CoQ10 Supplement includes the claim that the product is absorbed three times faster than competing products, but to adequately test this, Cortina would need to have performed blood testing, Wal-Mart’s legal team argues. In addition, there are disclaimers that indicate that the FDA has not verified the claims on the supplement. Finally, Cortina did not allege a financial loss by buying the product, noting that related products were either similar in price or more expensive.

However, if the judge rules that a separate count citing the Magnuson-Moss Warranty Act (MMWA) can proceed, the motion to dismiss the class action lawsuit includes an interesting text. Specifically, Wal-Mart’s legal team highlights the MMWA’s definition of a written warranty as “any written affirmation of fact or written promise made (that a product) is defect free or will meet a specified level of performance over a specified period of time.”

It is unclear whether or not “3 times better absorption” is a specific level of performance over a specified period of time, since to make a comparison, the amount of time would be unspecified but equal for the Equate CoQ10 supplement and competitor products. None of the cases cited in the motion to dismiss the false labeling class action lawsuit focus on a rate of action.

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.

UPDATE:  A California federal judge granted Wal-Mart’s motion to dismiss the Equate CoQ10 class action lawsuit on June 23, 2014. The plaintiff will have 21 days to file an amended complaint and try again.