COOK COUNTY RECORD

Just days after the New York Attorney General’s office ordered several major pharmacy retailers to stop selling store brand herbal supplements, two Iowa women launched a federal class action suit against the retailers in Illinois, claiming the retailers should pay up for allegedly fraudulently marketing herbal supplements.

On Feb. 6, Robin C. Hale of Des Moines and Kaitlyn Pirtle of Ames filed suit in Chicago's federal court against Walgreen, Target, Wal-Mart and GNC, alleging the retailers may have for years fraudulently sold products labeled as herbal supplements even though they contained little to none of the herbs consumers believed they were purchasing.

“When a retailer represents to the public that its nutritional supplements contain certain ingredients, the retailer’s supplements should contain those ingredients,” the plaintiffs assert in their suit. “This case arises from the Defendants’ repeated and systematic violation of this basic rule, by representing to the consuming public that their store-brand herbal supplements contained certain primary ingredients, when, as we know now, they failed to contain such ingredients.”

The plaintiffs are represented in the case by attorneys Steve W. Berman, Elizabeth A. Fegan, Daniel J. Kurowski, Thomas A. Ahlering and Jason Zweig of Hagens, Berman, Sobol, Shapiro LLP, a firm that has offices in Chicago, Seattle and New York; and J. Barton Goplerud of Hudson, Mallaney, Shindler & Anderson in Iowa.

This suit, as well as other similar complaints lodged this month, follows closely on the heels of New York Attorney General Eric Schneiderman’s Feb. 2 order to the four retailers to stop selling herbal supplements marketed under their proprietary labels.

Schneiderman's orders include the supplements sold under the “Finest Nutrition” brand at Walgreen stores; the “Up & Up” brand at Target; the “Herbal Plus” brand at GNC; and the “Spring Valley” brand at Wal-Mart.

The orders were issued after he said so-called “genetic testing” conducted through his office of various supplements sold by the retailers at stores in New York revealed most bottles of the supplements contained little to none of the herbs mentioned on the label.

Such supplements, which as recently as 2013 were estimated to account for $6 billion in sales in the U.S., are not subject to regulation by the federal U.S. Food and Drug Administration.

Tests of GNC’s Herbal Plus supplements, for instance, uncovered that just 22 percent of the bottles tested contained any material from the specific herb.

Tests of Target’s Up & Up supplements revealed only 41 percent contained herbal DNA, while only 18 percent of Walgreen’s Finest Nutrition supplements yielded the specific DNA. And, just 4 percent of Wal-Mart’s Spring Valley supplements contained the DNA of the herb mentioned on the label.

Instead, the products typically contained ingredients considered filler or contaminants, including rice, wild carrot, palm, radish, beans, asparagus and others.

In response to Schneiderman’s actions, GNC and others within the nutritional supplement business have pushed back, saying in published reports they believe the DNA testing method used by investigators does not apply to supplements, and would yield false results.

Industry groups have said they intend to conduct random tests of their own on the products in question.

However, the plaintiffs contend the New York attorney general’s tests demonstrate the retailers’ actions violated statutes governing consumer fraud, deceptive practices and false advertising in 28 states.

They have asked the court to certify a class including all consumers who purchased any of those four brands of supplements since Feb. 2, 2009. While 36 million Americans are estimated to consume herbal supplements, the plaintiffs said they need access to the retailers’ records to determine the size of their class in the action.

They have asked the court to declare the retailers engaged in “wrongful and unfair” marketing practices, order them to stop selling the supplements and to repay “the ill-gotten gains” from the sale of the allegedly fake supplements, as well as actual, punitive and compensatory damages.