Vitafusion Excessive Folate Supplement Class Action Survives Dismissal Bid

A federal judge recently trimmed claims in a proposed class action lawsuit which alleged that Church & Dwight’s Vitafusion B Complex Energy supplement contains dangerous levels of folate.

In response to Church & Dwight’s dismissal bid, U.S. District Judge John J. Tharp Jr. recently dismissed several allegations from plaintiff David Chavez stating that Chavez did not claim to have read the online statements before purchasing the supplement.

Judge Tharp also dismissed claims of Class Members who did not buy the product in Illinois based on jurisdictional grounds.

“With due respect to Mae West, sometimes too much of a good thing isn’t wonderful,” the court said.

In March 2017, Chavez filed a class action against Church and Dwight, alleging that their Vitafusion B Complex Energy supplement contains 1232 mcg of folic acid, or synthetic folate, instead of the 400 mcg of folate as recommended by the National Institutes of Health (NIH).

Chavez alleged that the NIH cautions consumers against ingesting more than 1000 mcg of folic acid. High amounts of folic acid can reportedly have serious health consequences including blurry vision, nausea, numbness, high blood sugar, and liver damage.

Church & Dwight motioned to dismiss the Vitafusion folate class action, arguing that the mislabeling claims brought by Chavez are preempted by federal regulations that allow “reasonable excess” of vitamins compared to their labeled amounts.

The company stated that excess folate was included to ensure that the amount wouldn’t decrease during the product’s shelf life, but Judge Tharp said that an alleged 300 percent increase isn’t necessary.

The court dismissed one of Chavez’ claims in Judge Tharp’s recent filing. Chavez’s online misrepresentation claim was dismissed because he didn’t adequately allege that he relied on the website’s statements when purchasing the supplement.

The plaintiff’s remaining allegations regarding mislabeling, unjust enrichment, failure to disclose an “unsafe” amount of folic acid, and unsuitableness for consumption survived the bid for dismissal.

Chavez initially sought to represent a nationwide Class of consumers who purchased the supplement, as well as a consumer fraud Class of purchasers from 13 states with similar consumer protection laws and a subclass of Illinois purchasers.

However, Judge Tharp said that Chavez cannot bring claims on behalf of a nationwide or multi-state Class due to a recent Supreme Court decision in the mass action Bristol-Myers Squibb Co. v. Superior Court. In that decision, the Supreme Court ruled that personal jurisdiction must be established by each plaintiff in a lawsuit.

Chavez is represented by Gary M. Klinger of Kozonis Law Ltd. and Daniel R. Johnson, Adam Waskowski and Seth Yohalem of Waskowski Johnson Yohalem LLP.

The Vitafusion Supplement Class Action Lawsuit is Chavez v. Church & Dwight Co. Inc., Case No. 1:17­-cv­-01948, in the U.S. District Court for the Northern District of Illinois.

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