Dismissal Secured for Nutraceutical In Putative Class Action

On the afternoon of Friday, August 10, Hueston Hennigan LLP secured the dismissal of a putative consumer class action against dietary supplement manufacturer Nutraceutical Corporation in Welk v. Nutraceutical Corporation, No. 3:17-cv-02266-BEN-KSC (S.D. Cal.). U.S. District Court Judge Roger Benitez held that Welk’s claims were preempted by federal law.

“This is a significant decision for all food, beverage, and dietary supplement manufacturers,” explained Nutraceutical lead counsel. “We are thrilled that the Court adopted our preemption arguments, which will provide a significant tool for defense counsel against these increasingly common ‘product testing’ complaints.”

 The Court’s order addressed a significant trend in class action litigation: the “surge” in cases targeting food and supplement manufacturers, where plaintiffs “are increasingly alleging independent product ‘testing’ claims of dubious scientific and legal value” in an “attempt to survive a motion to dismiss and begin discover.” See  U.S. Chamber, Trends in Food and Beverage Class Action Litigation at 1, 28 (February 2017).  The Court’s decision disallowing this non-compliant testing is a significant development because similar “product testing” claims have proven difficult to defeat at the pleading stage. See id. at 28 (“Once the testing allegation is made, it can prove difficult to overcome despite this lack of detail.”).

In the case, Plaintiff Toni Welk alleged that Nutraceutical’s product “Methyl Factors” was misleadingly labeled, claiming that “scientific testing” showed that the supplement contained less Vitamin B12 than listed on the label. Granting Nutraceutical’s motion to dismiss, U.S. District Court Judge Roger Benitez held that Welk’s claims were preempted by federal law.

The Hueston Hennigan team included John Hueston and Michael Todisco.


The news was also covered in the Daily Journal on Tuesday, August 14, 2018.