Nordic fails to get “natural” suit dismissed

Nordic Naturals has failed in a bid to have a class action suit dismissed. The suit alleges consumers have been misled by the company’s name because its products contain synthetic excipients and vitamins. 

The original suit was filed by the Sultzer Law Group on behalf of a lead plaintiff identified as Natalie Orrico. The suit was filed in the U.S. District Court in the Eastern District of New York. 

On Oct. 2 it was reported that a New York judge had dismissed the company’s motion to have the suit dismissed.  

Is “Naturals” name misleading? 

The suit alleged that the plaintiff was misled by the company’s name, believing that the products would have all natural ingredients. 

In fact, the complaint details a long list of ingredients categorized as ‘synthetic’ in the company’s many different supplements. 

Nordic Naturals was founded on a line of omega-3 fish oil products but now features many different kinds of supplements in its product line. 

The lawsuit listed 73 separate Nordic Naturals products there were claimed to have synthetic ingredients. 

Laundry list of synthetic ingredients 

The lawsuit quotes federal regulation about what’s synthetic. The regulation defines synthetic as “a substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plants, animals, or mineral sources.” 

Related:Staying in bounds: Part 2, Sports nutrition enforcement trends

The three most cited ingredients in the complaint are citric acid, gelatin and glycerin. These are deemed to be synthetic because of their production processes, such as hydrolysis in the case of gelatin or fermentation with mutant strains of black mold fungus. 

However, the complaint also calls out some of the vitamins or vitamin precursors present in some of Nordic Naturals’ finished products because of their synthetic nature. Those included beta-carotene, niacin, riboflavin and thiamine. 

The lawsuit alleges breaches of New York laws pertaining to fraudulent advertising as well as a breach of the express warranty the lawsuit claims the company made representing the products as “natural.” 

Defense will be costly 

Now that Nordic Naturals has failed to have the suit thrown out, the next possible exit point is at the class certification stage, attorneys contacted by Natural Products Insider have said. However, observers told Natural Products Insider that it will be an expensive suit to take forward because of the large number of products involved. As every product the company puts out has “Naturals” on the label, it puts the entire portfolio at risk. 

Matthew Orr, a shareholder in the law firm Amin Talati Wasserman, recently gave a presentation about class action trends in the dietary supplement industry at a legal seminar held in Utah. The Sultzer Law Group was mentioned as one of the highly active firms in the space. 

Attorney: Suit is overbroad 

Orr said it might be considered a bit of a reach to say that a word or phrase in a company’s name can be construed to be a statement of fact. 

“It’s a pretty aggressive approach to take the position that a company that is using ‘natural’ in its name is making some kind of claim or warranty that all of the ingredients used in all of their products are ‘natural.’” Orr said. “I think that’s a bridge too far.” 

Some judges are more proactive in applying a “reasonable consumer” standard at the pleading stage, Orr said. In other words, concluding that a reasonable consumer wouldn’t jump to the conclusions alleged in complaint, and so the suit has no merit. An example often trotted out is the proverbial lawsuit about whether Red Bull really gives consumers wings. 

However, Sultzer Law Group reportedly has filed many of its class action suits in this particular court, where it apparently has at least some success in clearing that legal bar. 

What would a reasonable consumer believe? 

Even though it failed at the pleading state, Orr said harping on “reasonable consumer” ideas might be the company’s best strategy going forward. 

“I think what’s going to happen in this case is that Nordic Naturals will demonstrate through consumer survey evidence or by other means that consumers don’t assume that the name of the company means all of the ingredients in all of the products are natural,” he said. 

Nordic Naturals’ CEO Joar Opheim chose the company’s name almost 30 years ago, before these kinds of class action lawsuits were prevalent. Orr said he wouldn’t recommend a client do something similar today. 

“If you are using terms like “natural” or “safe” or “clean,” that’s a red flag. That certainly is a target for plaintiff’s counsel,” Orr said. 

Nordic Naturals did respond in time for publication to a request for comment.