MDLs Sought for Herbal Supplement Lawsuits Against Wal-Mart, Walgreens, GNC

As a growing number of class action lawsuits over herbal supplements are being filed against Wal-Mart, Walgreens, GNC, Target and other retailers, several requests have been filed with the U.S. Judicial Panel on Multidistrict Litigation (JPML) seeking to centralize the cases before one judge for coordinated pretrial proceedings.

According to allegations raised in the herbal supplement lawsuits, the retailers are selling products that do not contain the ingredients listed on the labels, and plaintiffs indicate that some of the undisclosed ingredients may be hazerdous to consumers’ health.

Over the past week, motions have been filed seeking to consolidate cases brought against Wal-Mart (PDF), Walgreens (PDF), GNC (PDF) and Target (PDF), seeking to establish separate federal multidistrict litigations for consumer class actions filed over certain herbal supplements, including Ginkgo Biloba, St. John’s Wort, Ginseng, Garlic, Echinacea, Saw Palmetto and others.

Plaintiffs request that the cases be centralized before one judge to coordinate pretrial proceedings, reduce duplicative discovery into common issues, avoid conflicting pretrial rulings and to serve the convenience of the parties, witnesses and the Courts.

Herbal Supplement Problems

The cases stem from a cease and desist order sent by New York Attorney General Eric Schneiderman on February 2, informing the retailers that their generic herbal supplements are misbranded because they contain no active ingredients or are adulterated with undisclosed ingredients.

DNA testing revealed that 79% of the herbal supplements contained none of the primary ingredients. Schneiderman’s office conducted multiple DNA tests on the supplements to verify their ingredients.

“This investigation makes one thing abundantly clear; the old adage ‘buyer beware’ may be especially true for consumers of herbal supplements,” Schneiderman said in a press release. “The DNA test results seem to confirm long-standing questions about the herbal supplement industry.”

The tests revealed that herbal supplement users who thought they were taking the products listed on the label were actually taking pills filled with rice, beans, asparagus, ground up houseplants, wheat and other items. For example, only four percent of herbal supplements tested at Wal-Mart actually contained the ingredients listed on the label, and 20 separate tests of GNC’s Herbal Plus Ginseng revealed that there was actually no ginseng present.

While most of the companies have removed the products from their shelves in New York, some still sell them in stores across the country and some have denied the charges.

Herbal and dietary supplements are exempt from FDA oversight until a problem is detected, meaning that supplements on store shelves have not been tested by federal regulators for efficacy or safety. Some of the products tested contained wheat and other allergens that could be dangerous to consumers with certain allergies, but these ingredients were not listed on the products’ labels.

Herbal Supplement Class Action Lawsuits

Wal-Mart currently faces at least five separate class action lawsuits over herbal supplements sold under its “Spring Valley Supplements” label. On February 16, plaintiffs Mercedes Taketa and Michelle Fine petitioned the JPML to consolidate those lawsuits in the federal court in the Northern District of California for pretrial proceedings.

Walgreens faces at least 10 similar lawsuits, involving herbal supplements sold under the pharmacy chain’s own private label, “Finest Nutrition.” Plaintiff John Hollis filed a motion to consolidate on February 12, seeking to transfer the Wallgreens lawsuits to the U.S. District Court for the Northern District of Illinois.

GNC faces at least six herbal supplement lawsuits, involving the retailers “Herbal Plus” brand. In a motion filed February 17, plaintiff Gretchen Dore asks the JPML to centralize the cases in the U.S. District Court for the Southern District of Florida.

Finally, a motion was filed by plaintiff Melanie Barber on February 18, seeking to consolidate at least four Target lawsuits over their “Up & Up” brand herbal supplements. Barber seeks to transfer the cases to the U.S. District Court for the Northern District of California.

Each of the class action complaints present nearly identical cases asserting claims for violations of consumer protection statutes and deceptive business practices, seeking damages on behalf of all consumers who purchased the recalled herbal supplements.

The U.S. JPML is not expected to hear oral arguments on the motions until at least May 28, at an upcoming hearing session scheduled in Minneapolis, Minnesota.