Variation in supplement bottle contents defeats consumer protection claim

Gaminde v. Lang Pharma Nutrition, Inc., 2019 WL 1338724, No. 18-cv-300 (GLS/DEP) (N.D.N.Y. Mar. 25, 2019)

Gaminde alleged that CVS Krill Oil contains only approximately sixty percent of the 300mg of Omega-3 Krill Oil represented by the label, citing “independent research funded by the United States Department of Agriculture[ ] [ (USDA) ] and published in the Journal of the Science of Food and Agriculture.”  The court dismissed the claim because Gaminde failed to allege that the bottle he bought was similarly deficient based on testing.  “[N]umerous factors … affect the nutrient content amount from sample to sample, lot to lot, and bottle to bottle,” and this created an issue of subject matter jurisdiction, requiring Gaminde to prove his entitlement to proceed by a preponderance of the evidence.

The allegation that his bottle didn’t contain the labeled amount of oil was conclusory and unsubstantiated. Although “[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, ... jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.”

The journal study wasn’t enough to cross the line from speculation to a preponderance of the evidence. “Gaminde’s failure to allege that he tested his bottle of CVS Krill Oil—indeed, his failure to make any allegation regarding how he knows that it was mislabeled—is fatal.”  [The court noted that the journal study seemed to test two lots, not two bottles, but that didn’t matter.]  The USDA study itself “concede[d]” that “[t]here are many possible reasons for the supplements containing less than the stated label amount of [Omega-3 Krill Oil],” including “fluctuations in the fatty acid concentrations of fish during different times of the year.”  The sample size was small, and the study was published before Gaminde made his purchase, creating a temporal issue. The USDA study tested CVS Krill Oil purchased in the areas around Lafayette, Indiana and Chesterfield, Missouri, whereas Gaminde made his purchase in or around Schenectady, New York.  All this made the study unhelpful to Gaminde.

Query: if bottle contents vary so much, isn’t the consistent labeling false or misleading?  Since consumers apparently can’t bring claims, it’s up to regulators to do it if it is to be done at all.