A proposed class action against RB Health (US) LLC is highlighting a recurring false advertising theory that continues to draw scrutiny of front-of-pack nutrient claims on dietary supplements, according to one industry attorney.
“This is not necessarily a new theory, but we’ve seen a steady amount of these cases over the last couple of years,” Jennifer Adams, partner at Amin Wasserman Gurnani, told NutraIngredients.
Filed in the US District Court for the Central District of California, the lawsuit alleges labeling on several Airborne products could mislead reasonable consumers into believing the amount of vitamin C displayed on the front of the package applies to each chewable tablet, gummy or effervescent tablet, rather than the serving size.
Complaint centers on consumer interpretation
The complaint challenges labeling on six Airborne products, including Vitamin C chewable tablets, immune support gummies and effervescent tablets.
According to the lawsuit, consumers are led to believe that each dosage unit contains the amount of vitamin C displayed on the principal display panel. The plaintiff alleges that “reasonable consumers are led to believe that each chewable tablet, gummy, or effervescent tablet contains the advertised dosage amount,” when, according to the complaint, multiple units are required to obtain the stated amount.
The lawsuit does not allege the products contain less vitamin C than disclosed in the Supplement Facts panel. Instead, it argues the front-of-pack presentation may create a misleading impression about how much vitamin C is contained in an individual tablet, gummy or effervescent tablet versus a serving.
The complaint further alleges that “consumers grossly overpay for the products, receiving only a fraction of the advertised value while paying the full purchase price.” It seeks class certification and alleges violations of California’s Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act, along with restitution, injunctive relief and changes to the products’ labeling.
Consumer perception versus compliance
Adams said the case illustrates an important distinction between regulatory compliance and consumer perception. Even where companies believe they have complied with US Food and Drug Administration (FDA) labeling requirements, plaintiffs may argue that consumers reasonably interpret front-of-pack claims differently.
“While arguably most reasonable consumers, myself included, are not up to doing the quick mental math, courts have generally been letting the cases move forward,” Adams said.
She added that the allegations underscore how consumer class actions may hinge less on whether nutrient disclosures are technically accurate than on how a reasonable consumer is likely to interpret prominent claims on the principal display panel.
“It’s unfortunately another situation where FDA-compliant labels are still susceptible to false advertising allegations,” she said.
Although the outcome of the case remains uncertain, Adams said manufacturers can take practical steps to reduce litigation risk without substantially changing their labels.
“Fortunately, small tweaks such as specifying ‘per serving’ by the amount claim and/or disclosing the number of servings by the net quantity can help companies get ahead of this litigation trend,” she said.
NutraIngredients reached out to RB Health (US) LLC, named defendant and manufacturer of Airborne products, who declined to comment at this time.
