Nordic Naturals Fish Oil Fraud Class Action Lawsuit Dismissed

A class action lawsuit alleging that Nordic Naturals Inc. violated the New Jersey Consumer Fraud Act by misleading consumers about its “Ultimate Omega” fish oil supplement has been dismissed.

Representing himself, lead plaintiff Harold M. Hoffman alleged in the 2012 Nordic Naturals class action lawsuit that Nordic Naturals presented false representations about the quality, testing and labeling standards it employed with respect to its product “Ultimate Omega,” an Omega-3/Omega-9 fatty acid fish oil supplement. Hoffman alleged that “based upon sophisticated, independent laboratory analysis, Defendant’s product contained 311% of the claimed concentration of Omega-9 Oleic Acid, a mono-unsaturated fatty acid associated with increased risk of certain cancers as well as respiratory distress syndrome.”

Based on these allegations, Hoffman argued in the Ultimate Omega class action lawsuit that he had claims against Nordic Naturals for violations of the New Jersey Fraud Act, common law fraud, unjust enrichment, breach of express warranty, and breach of the implied warranty of merchantability.

The Nordic Naturals Ultimate Omega class action lawsuit was removed to federal court in September 2012, and Nordic Naturals filed a motion to dismiss the case in June of 2013. In their motion, Nordic Naturals asserted “[t]he complaint her alleges that [Hoffman] purchased Ultimate Omega, a nutritional supplement with a high concentration of Omega-3s,” but, “conspicuously absent from the pleading is any allegation that he actually consumed the product, did not get what he bargained for, suffered any actual loss as a result of his purchase or even that he was deceived in any way.”

New Jersey Federal Judge Susan D. Wigenton agreed with Nordic Naturals, noting in her April 17 opinion, “Plaintiff alleges that he suffered ascertainable losses ‘in the form of actual out-of-pocket payment and expenditure’ and by receiving ‘a tainted product less than, and different from, the product promised by defendant,” however “[t]hese broad and conclusory allegations do not provide the specificity that is required in pleading ascertainable loss.”

The judge pointed out “To succeed on a claims under the [New jersey Consumer Fraud Act], a plaintiff must show (1) an unlawful practice by defendant, (2) an ascertainable loss on the part of the plaintiffs, and (3) a causal relationship between the defendant’s unlawful conduct and the plaintiff’s loss.” However, here “even if taking Plaintiff’s claim that Ultimate Omega contained 311% more Omega-9 Oleic Acid as true, does not necessarily make Defendant’s claims of ‘world’s safest’’ and ‘award winning’ false.”

The judge also found that Hoffman failed to make viable claims under Common Law Fraud, stating “Plaintiff does not allege that no value was received for purchasing the product,” and “Plaintiff does not articulate how Ultimate Omega ‘failed to function as advertised, that he consumed and was thereby injured by the product, or why it was unjust for the Defendant to retain the money aid for the product.”

Similarly, the judge dismissed Hoffman’s claims for Breach of Express and Implied Warranty stating “Plaintiff merely makes broad and conclusory statements and essentially recites the elements required under each claim.”

The judge determined that she could not make a decision about Nordic Natural’s argument that the Federal Food, Drug and Cosmetic Act preempted Hoffman’s claims because “neither party has presented an argument as to whether this alleged 311% excess [of Omega-9] is or is not ‘within good manufacturing practices.” She dismissed the Ultimate Omega class action lawsuit without prejudice and Hoffman has indicated he will amend his complaint.

Lead Plaintiff, Harold M. Hoffman, is representing himself, pro se.

The Nordic Naturals Fish Oil Fraud Class Action Lawsuit is Harold M. Hoffman v. Nordic Naturals Inc., Case No. 2:12-cv-05870, in U.S. District Court for the District of New Jersey.