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Judge Nixes GNC Zero Impact Meal Bar Class Action Lawsuit
By John Curran
A California federal judge has nixed a class action lawsuit accusing General Nutrition Centers Inc. and Vital Pharmaceuticals of deceptively marketing “Zero Impact” meal bars, ruling the plaintiff lacks standing to pursue damages because the matter is better adjudicated by Food and Drug Administration policy that does not yet exist.
Plaintiff Gabe Watkins alleged in the proposed class action lawsuit that he bought “Zero Impact” meal bars manufactured by Vital Pharmaceuticals and sold in GNC stores under the assumption that they would not affect dietary and caloric intake, yet they “certainly have an impact [emphasis original] on consumers’ carbohydrate, sugar and overall caloric intake, and to claim otherwise is simply false and misleading.”
Judge S. James Otero felt differently, noting in a Nov. 7 decision that the FDA has primary jurisdiction over issues regarding labeling food, beverages and supplements including the “Zero Impact” meal bar. While claims of “no sugar” and “no calories” must comply with FDA regulations regarding the amount of chemicals used, there is no such policy regarding any level of “impact,” he ruled. The decision comes nearly four months after the Ninth Circuit Court of Appeals ruled that the class action lawsuit should remain in federal court.
Otero’s decision to dismiss the Zero Impact class action lawsuit cited a decision from the Ninth Circuit Court of Appeals, which noted that although the FDA had not addressed a marketing or labeling claim, similar to the misleading advertising class action lawsuit, it was still under its purview and not that of private citizens.
While Watkins’ class action lawsuit alleged that there was a state court decision that enabled consumers to still sue based on factual inaccuracies and false misrepresentations, Judge Otero decided that there was no way to accurately assess what a reasonable customer would consider “Zero Impact” to even mean. Moreover, “Resolving such ambiguity without FDA input could result in exactly the sort of ‘undercutting’ of FDA judgments that the primary jurisdiction doctrine is designed to prevent,” he said.
The judge did recommend that the FDA look into Watkins’ allegations and see whether or not there was any need to create policies regarding that phrase and what ingredients or caloric measurements any manufacturer would need to meet in order to incorporate the wording into advertisements. Watkins has leave to amend the complaint should the federal agency do so.
Watkins is represented by class action lawsuit lawyers Casey Edwards Sadler, Lionel Zevi Glancy and Marc L. Godino of Glancy Binkow and Goldberg LLP.
The GNC Zero Impact Meal Bar Class Action Lawsuit is Gabe Watkins v. Vital Pharmaceuticals, et al., Case No. 12-cv-09374, in the U.S. District Court, Central District of California.
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