Korolshteyn v. Costco Wholesale Corp.

Korolshteyn v. Costco Wholesale Corp.

Public Justice has joined as co-counsel in the Ninth Circuit appeal of a decision dismissing, on federal preemption grounds, a putative consumer class action involving allegedly falsely labeled dietary supplements.  The supplement in question, “TruNature Ginkgo Biloba,” is labeled and advertised as “support[ing] alertness & memory” and “help[ing] maintain healthy blood flow to the brain to assist mental clarity and memory, especially occasional mild memory problems associated with aging.” But the overwhelming weight of scientific evidence shows the opposite—that Ginkgo Biloba does nothing, and is no better than a placebo.

The district court dismissed the lawsuit on the ground that the plaintiff’s claims are preempted under the Federal Food, Drug, and Cosmetic Act (FDCA), as amended by the Nutrition Labeling and Education Act (NLEA), which bars states from imposing any “requirement” that is different from, or in addition to, requirements imposed by federal law.  In the court’s view, it would not matter if plaintiffs could prove that the supplements were worthless and did not provide any of the advertised benefits.  Rather, the court held, because the plaintiff did not show that the supplements are materially harmful to consumers, her claims are preempted by federal law.

If left to stand, the district court’s decision, in our view, would be disastrous for consumers.  It would strip consumers of their right to seek any remedy under state law for being tricked into buying supplements at premium prices, no matter how outrageously false and misleading the labels. And it would allow corporations to lie about the health benefits of their supplements with impunity.

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