Cook County Record

Monday, March 30, 2020

Appeals judges end class action vs big retailers over aloe content in store-brand '100% aloe' gel


By Scott Holland | Mar 25, 2020


CHICAGO — A federal appeals panel has dumped a class action over just how much aloe vera was in store brand aloe vera gels.

Defendant company Fruit of the Earth makes aloe vera gel under its own name, while also producing private-label versions for retailers, including CVS, Walgreens, Walmart and Target. The retailers were also named as defendants in the action.

In the initial lawsuit, the plaintiffs claimed the gels didn’t contain any aloe vera or a compound known as acemannan, which the consumers said is what gives the aloe plant its therapeutic qualities.

Attorney Katrina Carroll | Lite DePalma Greenberg, LLC

After discovery revealed the gels included both components, the plaintiffs amended their complaint to claim the gels didn’t have enough acemannan to be sold as “100% Pure Aloe Vera Gel.” Still, U.S. District Judge Joan Lefkow granted summary judgment in favor of the gel maker and retailers, finding there wasn’t enough evidence to show the labels would deceive reasonable consumers.

The plaintiffs then appealed to the U.S. Seventh Circuit Court of Appeals.

Circuit Judge David Hamilton wrote the opinion, issued March 24; judges William Bauer and Frank Easterbrook concurred.

According to the appeals judges, the only products at issue on appeal are the gels sold under the Walgreens and Fruit of the Earth labels. Hamilton said all “parties agree that the products are 98% aloe gel (the reconstituted aloe vera solids) and 2% other ingredients (stabilizers and preservatives).” The panel noted the Fruit of the Earth gel label has two “100%” references, but one incorporates an asterisk pointing to the back of the label for information on the stabilizers and preservatives. Each label lists the gel’s ingredients.

“Plaintiffs have not presented any actual evidence that the label is likely to mislead consumers about the nature or quality of the product,” Hamilton wrote. He said there is no evidence buyers care about acemannan concentration nor “that some concentration of acemannan is necessary to render the product effective.”

Although there was debate about the admissibility of a report from the plaintiffs’ expert concerning acemannan content, Hamilton said the “critical gap in the evidence” is any testimony arguing either that “a product with lower acemannan concentration cannot fairly be described as aloe” or offering an “opinion on the relationship between aloe concentration and efficacy.”

The plaintiffs, Hamilton continued, “all felt misled because they were incorrectly informed by their lawyers that the products contain little or no aloe vera. This was all based on the factually inaccurate theory that plaintiffs later had to abandon.”

The panel said Judge Lefkow was correct to determine no reasonable jury would find the labels misleading and grant summary judgment to the defendants, even as plaintiffs were attempting to secure formal approval to turn the lawsuit into a class action.

A lack of evidence likewise undercut the argument the gels lack a therapeutic benefit, the appeals judges said. Plaintiffs in private consumer protection claims must prove false or misleading advertising. They cannot compel a court to force a defendant to prove its promotional materials, Hamilton said. The allegations concerning the “100%” labeling fail for the similar reasons, Hamilton said, because there is “no evidence indicating that consumers interpret these as statements of quality.”

As to the stabilizers and preservatives in the gel, the panel said the plaintiffs’ summary judgment brief and deposition testimony negated their legal theory by noting “the presence of preservatives - in reasonably small amounts - was acceptable and something they expected,” and that “no plaintiff took the label to mean that there was absolutely nothing other than aloe vera in the bottle.”

The panel also said the state law under which the plaintiffs sued is not in conflict with U.S. Food and Drug Administration product labeling regulations and affirmed Lefkow’s ruling.

The plaintiffs were represented in the case by a number of attorneys, including Katrina Carroll, and others with the firm of Lite DePalma Greenberg LLC, of Chicago;  Jeffrey A. Berman and Brian J. Wanca, of the firm of Anderson Wanca, of Rolling Meadows; Nick Suciu III, of Barbat Mansour Suciu & Tomina, of Bloomfield Hills, Mich.; Jonathan Shub and others, of Kohn Swift & Graf P.C., of Philadelphia; Greg Coleman, of Knoxville, Tenn.; and others with the firms of Levi & Korsinsky, of Washington D.C.; JTB Law Group, of Jersey City, N.J.; Sommers Schwartz, of Southfield, Mich.; Ram Olson Cereghino & Kopczynski, of San Francisco; Morgan & Morgan, of Tampa, Fla.; and Turke & Strauss, of Seattle.

Defendants were represented by attorney Elizabeth M. Chiarello and others with the firm of Sidley Austin, of Chicago.

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Organizations in this Story

Walgreens Co.Sidley Austin LLPAnderson + WancaU.S. District Court for the Northern District of IllinoisU.S. Court of Appeals for the Seventh CircuitCVS/caremarkLite Depalma Greenberg LLCSam's Club/Walmart Corp.

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