Location: INNOVA, multivision broadcast, alignment SV.458.ds, 28 October 2011.
 
 
Elena Serbinova, Host: “Good evening ladies and gentlemen and welcome to another episode of INNOVA. We are joined tonight by our legal affairs expert, professor Carina Stumpf, MD, JD, of Millanova University School of Legal and Life Sciences, reporting on the fascinating trend of class action suits in the nutrition products sector. Thank you for joining us again, professor. What is the impetus behind the dramatic increase in class action lawsuits centered around nutritional products?”
 
Prof. Stumpf: “Since January 2010 there have been 31 class action suits filed in both Multiversal and Provincial courts, with 19 being focused on dietary supplements and 12 on food and beverage products. The unsettled cases that we are watching closely this year are targeted at probiotic and sports nutrition products.” 
 
Elena: “Professor, during your first appearance on INNOVA in June of 2010 you stated that most class action lawsuits target high profile, widely distributed brands with abundant cash flow or multinational corporate parents. Is this still your assessment?”
 
Prof. Stumpf: “It still seems this is the corporate profile of targets but we also might be witnessing the emergence of a new litigation lightning rod: high profile national advertising. A recent suit involved a very new entrant to the so-called functional beverage category. A wholly owned enterprise, Nuronix, Inc. took out high profile, multi-page magazine ads, complemented by airboard advertisements in key markets. The suit claimed that two of the products lacked any substantiation for the hip and creative claims. Like the vast majority of ‘functional’ beverage products, Nuronix had no substantiation to support the claims, had notably lower amounts of ‘key’ ingredients, relative to the evidence, and failed to demonstrate that these key ingredients were shelf-stable for the labeled shelf-life of the product. Nuronix swiftly settled out of court for $150,000 and had to withdraw the named products from commerce for 18 months.”
 
Elena: “What can you tell us about the class action suits in the probiotics category?”
 
Prof. Stumpf: “This category is a magnet for class actions. One product, Gut Helper, marketed by a consumer products subsidiary of a multinational drug company and advertised on multivision for more than a year, has a suit claiming a lack of proper evidence to support the digestive and immune boosting claims. Notably, this product appears to have a few studies, but the brand does not mention them on the product or advertising. The same law firm that filed this class action also filed—two months later—a suit against two of the top selling probiotic products, Gut Additive and Colonex. Distinctively, this latter suit acknowledges the existence of substantiating evidence but asserts that it is both equivocal and not meritorious of the descriptor ‘clinical proof.’ If the ‘proof’ is shown to be lacking, the brands will be sold at auction.
 
“But the case I am most intrigued by is a suite of products called Lucha Leche, a relatively high fat-containing sport nutrition brand of drinks and bars that has gone mainstream. The word ‘leche’ is Spanish for milk, although the product claims it does not contain any. This suit claims fraud and negligent misrepresentation, especially in relation to its advertising wherein the suit asserts implied weight and fat loss, as well as body reshaping claims. Eleven days after the suit was filed, the industry’s regulatory body, FADSA, served the marketers of Lucha Leche a warning letter, addressing in part the calorie content and the ‘leche’ attribution. It’s been a tough month for this company. If it loses the class action suit the entire brand will be excluded from commerce for five years…and so the FADSA sanctions will be moot.”