A class action suit accusing the maker of herbal supplements of not including enough herbs in their supplements will be allowed to continue, in part, after a federal judge agreed only to dismiss certain elements of the lawsuit against Nature’s Bounty.

On Sept. 28, U.S. District Judge Rebecca R. Pallmeyer did not grant complete dismissal to Nature’s Bounty in a complaint it faces from a Lake Zurich resident over its St. John’s Wort supplements. The underlying factor is whether the supplement contains, as advertised, 0.3 percent hypericin, a compound believed to have anti-depressant effects.

Joseph Siprut, of Siprut P.C., Chicago
Joseph Siprut, of Siprut P.C., Chicago

The plaintiff, John Muir, bought the supplement from Walgreens in July 2015. His original complaint brought claims against several manufacturers of the supplement and a corporate parent, but those claims were dismissed when a judge ruled Muir lacked standing for most of those claims, having purchased only a Nature’s Bounty product.

Muir’s lawyer submitted a bottle of St. John’s Wort tested by Chromadex, a laboratory based in Irvine, Calif., showing it contained only 0.578 milligrams of hypericin per serving, when 0.9 milligrams are required to reach 0.3 percent, the smallest amount shown in studies to confer the advertised benefits. Pallmeyer noted Muir’s complaint doesn’t clarify if the bottle tested is the one he purchased.

In moving to dismiss the amended complaint, Nature’s Bounty said Muir failed to state a claim because his lab test was insufficient to establish the deficiency and that the term “standardized” referring to the amount of an active ingredient does not legally guarantee that amount in each serving. The company also said Muir cannot assert consumer fraud claims under laws of states in which he did not buy the product.

At issue is whether Nature’s Bounty knew the supplement contained less than the advertised amount of hypericin. The company also said he failed to give timely notice before filing his complaint. The Uniform Commercial Code, which Illinois adopted, grants exceptions to the notice clause — one for plaintiffs who suffered a physical injury, which Muir did not, and a second for defendants who have an actual knowledge of their product’s defect, but continue selling it.

Pallmeyer wrote that Muir did not say he directly notified the company of the results of laboratory testing, nor did he adequately allege the company’s own “purity and potency” testing resulted actual knowledge of the product’s deficiencies. Citing the 1996 Illinois Second District opinion in Connick v. Suzuki Motor Co., Pallmeyer said the actual knowledge exception is narrowly drawn such that the customer notifying the company of the defect is essential to a successful allegation. As such, she dismissed his breach of warranty claim.

However, Pallmeyer did not dismiss Muir’s claims the company violated the Illinois Consumer Fraud Act. Nature’s Bounty argued Muir had only raised a breach of contract action, which the Act excludes if the defect in question is the subject of an express warranty. But what ultimately matters under the state law, Pallmeyer wrote, is a company’s “knowing failure to disclose” a product is defective. That claim was directly linked to Muir’s allegation of unjust enrichment, which also survived.

Pallmeyer also struck down Muir’s nationwide class allegations, without prejudice, because “unjust enrichment doctrine is particularly complex and … Nature’s Bounty did identify at least one significant difference in the unjust enrichment law of the 50 states.”

She likewise rejected his multi-state class allegations because Muir does not have the standing to assert claims unrelated to his personal experience on behalf of members of a class that hasn’t been certified.

Muir is represented in the action by attorneys with the firms of Greg Coleman Law PC, of Knoxville, Tenn.; Barbat, Mansour & Suciu PLLC, of Bloomfield Hills, Mich.; and Siprut P.C., of Chicago.

Nature's Bounty is defended by the firm of Winston & Strawn LLP, of Chicago.

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Siprut P.C. U.S. District Court for the Northern District of Illinois Winston and Strawn LLP

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