Walmart, Target, Walgreens Must Face Herbal Supplements Class Action

An Illinois federal judge has denied a motion by Walmart, Target and Walgreens to dismiss a class action lawsuit alleging they sell herbal supplements made by NBTY Inc. that do not contain the ingredients listed on their labels.

The herbal supplements class action lawsuit accuses the retailers of violating state consumer protection laws and unjust enrichment.

Last week, U.S. District Judge Amy J. St. Eve rejected the retailers’ arguments that the plaintiffs cannot base their claims solely on the investigation into the herbal supplements that is currently being performed by New York Attorney General Eric Schneiderman.

In her May 19 order, Judge St. Eve said that Schneiderman’s findings, which are reportedly based on DNA testing of samples of supplements purchased from each of the retailers’ stores, are reliable enough to bolster the plaintiffs’ claims.

The testing of the supplement samples reportedly revealed that several types of supplements did not contain the ingredients that were listed on the labels. Some supplements were allegedly contaminated with other ingredients that were not listed on the labels.

According to the herbal supplements class action lawsuit, the retailers fail to verify the supplements they buy from third-party vendors contain only the ingredients listed on the product labels. The retailers also fail to require vendors to test the supplements using DNA barcoding, which the plaintiffs claim is a generally accepted forensic tool that allows for the identification of plant species.

“There is no reason to believe the NYAG inaccurately reported the testing it conducted, and there is no reason to believe that the NYAG is anything other than a reliable government source,” Judge St. Eve said in her order.

“This is not a case where plaintiffs are simply relying on stray remarks fresh off the rumor mill,” according to the judge.

Although Judge St. Eve did not dismiss the herbal supplements class action lawsuit in its entirety, she did trim injunctive relief, implied warranty and express warranty claims from the case, but will allow the plaintiffs to amend the complaint.

The herbal supplement class action lawsuit is made up of more than 20 lawsuits that have been filed against the NBTY and the retailers. In 2015, these cases were consolidated into multidistrict litigation titled In re: Herbal Supplements Marketing and Sales Practices Litigation, and is currently pending in the Northern District of Illinois.

The proposed Class includes consumers who purchased certain herbal supplements from defendants Wal-Mart Stores Inc., Target Corp. and Walgreens Boots Alliance Inc.

Walmart sells the NBTY supplements under the brand name “Spring Valley,” Target sells the products under the “up & up” brand and Walgreens sells the supplements under the brand name “Finest Nutrition.”

The plaintiffs are represented by Robert A. Clifford, Shannon McNulty and Kristofer S. Riddle of Clifford Law Offices PC, and Steve Berman, Elizabeth Fegan and Jason Zweig of Hagens Berman Sobol Shapiro LLP.

The NBTY Herbal Supplements Class Action Lawsuit is In re: Herbal Supplements Marketing and Sales Practices Litigation, Case No. 1:15-cv-05070, in the U.S. District Court for the Northern District of Illinois.

UPDATE: The NBTY Herbal Supplements lawsuit was dismissed on August 21, 2017, due to individual settlements being reached.  Top Class Actions will let our viewers know if any new NBTY supplement class action lawsuits are filed.