Clark Hill's Matthew Marshall Secures Summary Judgment in Class Action Dietary Supplement Case
San Diego Member Matthew Marshall recently secured a summary judgment ruling for his client in a national class action case involving a dietary supplement that contained an ingredient supplied by his client.
Initially filed in 2016, plaintiffs asserted 13 causes of action, including fraud, false advertising, and negligent misrepresentation against Marshall’s client, another ingredient supplier, the manufacturer of the supplement, and a famous television personality. The plaintiffs alleged that the television show promoted the two ingredients in question for their weight-loss properties, and to look certain statements on the labels of the supplement products that contained the ingredients.
“These types of claims are not atypical and are usually targeted at the manufacturer, who labels and sells the products, and are based on the contention that the products are ineffective at what they purport to do,” Marshall said. “In this case, plaintiffs also tried to rope in our client who merely supplied the ingredient but who was not responsible for what the manufacturer said on the label regarding the effectiveness of the product.”
When the plaintiffs found and purchased supplements containing these ingredients, they claimed the products were ineffective and thus the statements made on the product’s label were false and misleading as they related to the two weight-loss ingredients.
Marshall’s client supplies a propriety version of hydroxycitric acid, which is marketed as an appetite suppressant and is an extract derived from the tropical fruit garcinia cambogia. However, the client did not manufacture, sell, label, or advertise the finished product that contained its ingredient and which was the subject of the litigation.
A primary allegation against Marshall’s client was that it colluded with the television show to feature the benefits of the garcinia cambogia ingredient, and, that it further aided and abetted, if not controlled the content of the labeling on the finished garcinia cambogia product that the plaintiffs contended that they purchased.
The court found the show had no relationship with Marshall’s client in regard to the content of the episode of the show that featured and promoted garcinia cambogia, and that the show or the personality never received any compensation from the client for broadcasting this episode. The episode never mentioned the brand name of the client’s proprietary version of the ingredient. Finally, the episode had aired several months before the client even began supplying the ingredient to the manufacturer of the product that the plaintiffs claim they purchased.
The court also found that the undisputed evidence established that the contract between Marshall’s client and the product manufacturer prevented Marshall’s client from having any control over the claims made on the product label. A trademark licensing agreement permitted Marshall’s client to control the depiction of its ingredient and logo on the product label, but the ability to control the content of the labeling of the product and its efficacy claims remained with the manufacturer. The court relied heavily on the fact that while Marshall’s client later approved of the portrayal of its trademarked material, it had explicitly noted that the approval was entirely without responsibility for the content of the labeling on the product, including the efficacy claims on which the plaintiffs claimed they relied. The manufacturer admitted that it had designed the product label on its own and that its research and development team decided which efficacy claims to place on the label.
Among the three plaintiffs named as putative class members, two were found to have never purchased the garcinia cambogia product in question, and the third who did purchase the product didn’t do so until eight months after she watched the television show featuring the ingredient of Marshall’s client. In the case involving the third plaintiff, the court found that Marshall’s client exercised no control over the content of the labeling claims on which the plaintiff claims she relied. This was confirmed by the terms of the trademark licensing agreement between the ingredient supplier and the manufacturer and in later correspondence between the two entities.
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