Judge only partially chops class action claims vs Church & Dwight over amount of folic acid in supplement

By Kyla Asbury | May 22, 2018

vitamins   Morguefile

CHICAGO — A federal judge partially granted a motion to dismiss a class action lawsuit over whether a vitamin contained too much folic acid.

On May 16, U.S. District Judge John J. Tharp Jr., who was on the bench for Illinois' Northern District, authored the opinion, stating that "too much of a good thing isn't wonderful."

Tharp dismissed with prejudice the claim that Church & Dwight misrepresented the "quality of its dietary supplements" and labeling on its website. He also dismissed the claims for consumers outside of Illinois.

Tharp, however, denied Church & Dwight's motion to dismiss the lawsuit in all other respects.

Daniel Johnson  

In its motion to dismiss, Church & Dwight alleged that David Chavez's claims were preempted by federal nutrition labeling laws.

Church & Dwight also contended that Chavez could not "represent a class of consumers outside of Illinois due to a lack of standing and personal jurisdiction," according to the order.

The supplement in question, known as Vitafusion B Complex Adult Vitamin Gummies, is advertised by Church & Dwight as "an excellent source of certain B vitamins, including folic acid," according to the order.

The labeling on the vitamin states that it contains 400 mcg of folic acid.

Chavez's counsel, however, had testing performed on the vitamin, which allegedly showed that it contained more than triple the amount listed on the label, according to the order.

Consuming more than the upper tolerable intake limit of folic acid could have "adverse health effects," according to the order.

Chavez had purchased the vitamins on multiple occasions over the last several years and claimed in his lawsuit, if he had been aware of the amount of folic acid in the vitamins, he would not have taken them.

Chavez filed the lawsuit in March 2017, claiming Church & Dwight mislabeled the vitamins, breached warranties and failed to disclose that the products contained an unsafe level of folic acid, which allegedly made them unfit for consumption.

Church & Dwight then moved to have the complaint dismissed.

Tharp wrote that while he agrees with Church & Dwight that "the [Food, Drug and Cosmetic Act] permits manufacturers to under declare folic acid by a reasonable amount," he disagreed with the company's assertion that Chavez's amended complaint does not "plausibly allege a violation of the reasonable excess provision" of the act.

"To be sure, it remains to be seen whether the predicate for Chavez’s argument bears up under scrutiny," he wrote in the order. "But his claim that including harmful levels of folic acid falls outside the bounds of reasonableness or [current good manufacturing practice] is by no means implausible."

Chavez is represented in the action by attorneys Daniel R. Johnson, of the firm of Waskowski Johnson Yohalem LLP, of Chicago, and Gary M. Klinger, of Kozonis Law, of Chicago.

Church & Dwight is represented by attorneys Kristen Leigh Jones, Lawrence I. Weinstein, Bart H. Williams and Baldassare Vinti, of the firm of Proskauer Rose LLP, with offices in Chicago, New York and Los Angeles. 

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Organizations in this Story

Kozonis Law Proskauer Rose LLP U.S. District Court for the Northern District of Illinois

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