March 11, 2015

UPDATE: Herbal Supplement Manufacturers Continue to be Targets, as State AGs Conduct Probe and Plaintiffs Bring Consumer Class Actions

Seller Beware: Consumer Protection Insights for Industry

Last month, the Seller Beware blog covered New York Attorney General Eric Schneiderman's well-publicized demand that certain retailers stop selling some store-brand herbal supplements. This week, a group of state attorneys general, led by the NY AG, went public with their plans to form a coalition for an expanded probe of the herbal supplement industry. So far, Connecticut, Indiana, and Puerto Rico have joined with New York in the coalition.

While the NY AG's announcement was shy on details, he did indicate that the coalition would . "[seek] to enhance transparency and ensure that the herbal supplements industry is taking the steps necessary to validate their marketing claims, including as to authenticity and purity."

The NY AG's coalition announcement came in the wake of class actions filings in Arkansas, California, Florida, Ohio and Oklahoma, with at least one plaintiff already seeking to consolidate the many various claims into a single multi-district litigation.

The makers of herbal supplements aren't taking this onslaught of governmental criticism and consumer litigation lying down. The two leading trade associations representing makers of herbal supplements have strongly criticized the NY AG's attack. The Council for Responsible Nutrition publicly denounced the testing method used by the NY AG as "not appropriate for use on herbal supplements." And the American Herbal Products Association calls the analytical method "suspect . . . at best, and likely to provide results that are inaccurate." Experts have echoed that conclusion, and even the FDA has declined to endorse the DNA testing methodology used by the NY AG as a valid way to evaluate the makeup of herbal supplements.

Despite the mounting evidence that the NY AG's attack on herbal supplement makers may have been based on bunk science, there is no sign that the landslide of consumer class actions is slowing. Nor does it appear the NY AG and his newly formed coalition are likely to retreat from these allegations. To the contrary, as updated earlier, the NY AG has since broadened his inquiry and subpoenaed information relating to the truthfulness of the herbal supplements' advertised claims.

© Arnold & Porter Kaye Scholer LLP 2015 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.


David Kouba
David Kouba
Washington, DC
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