Shook, Hardy & Bacon Partner Laurie Henry has authored an article titled “Plaintiff’s Bar Targets Dietary Supplement Efficacy Claims,” part of Law360’s “Expert Analysis” series. Published on January 30, 2014, the article focuses on recent developments in consumer-fraud litigation involving dietary supplements containing chondroitin and/or glucosamine. Case filings have gained momentum during at least the past three years; some have been transferred to a multidistrict litigation court, others have settled, and at least one is on appeal before the Ninth Circuit to determine whether class certification was appropriate. Henry cautions manufacturers to carefully review their product claims “with an eye not only toward federal regulators, but also the plaintiff’s bar.” She recommends asserting every colorable defense to defend brand integrity and exploring the growing body of case law on product labeling, including food and beverage products, to find successful defense strategies specific to particular jurisdictions.
Regardless of the merits of the plaintiffs’ claims, it is apparent that dietary supplement makers would benefit from a careful review of the clinical studies on which they base their product promotions and choose their labeling, advertising and website representations with an eye not only toward federal regulators, but also the plaintiffs bar. One lawsuit or agency warning letter quickly spawns new litigation, and the pressure to settle only increases as courts allow them to proceed as class actions and the costs of discovery mount.