something's plausibly fishy about Target's omega-3 supplement

Rodriguez v. Target, 2022 WL 18027615, No. 22 Civ. 2982 (LGS) (S.D.N.Y. Dec. 30, 2022)

Plaintiffs sued for breach of express warranty under New York and California law, violation of the New York General Business Law (“GBL”) §§ 349 and 350, and the usual California claims. The court made the expected rulings (no standing for injunctive relief; no preemption except to the extent that the UCL “unlawful” claim attempted to borrow the FDA rules directly; UCL unlawfulness created by borrowing California’s Sherman Act, which itself duplicates most of the FDCA, was fine). Thus, most of the claims survived Target’s motion to dismiss (though unjust enrichment/quasi-contract was duplicative).

Allegations: Defendants market a dietary supplement product labeled “100% Wild Alaskan 1000 mg Fish Oil” whose label asserts that it “Contains Fish: Alaskan Walleye Pollock.” The Supplement Facts state that each serving of two 1000-milligram capsules contains 2000 milligrams of “Fish Oil” and 600 milligrams of “Omega-3 Fatty Acids.” The side panel says: “This unique fish oil is sourced from walleye pollock caught wild in Alaskan waters. This oil is extracted within hours to ensure maximum freshness and is pressed and purified by a family-owned American company using advanced processing technology.”

Why does this matter? Because most people don’t eat fatty fish regularly, fish oil supplements are used for health benefits associated with omega-3 fatty acids and several other nutrients. The complaint alleges that traditional fish oil processing requires pressing small fatty fish with several steps to separate the oil from water and remove undesirable components and attributes; this doesn’t change the naturally-occurring chemical structure of the triglycerides formed by the omega-3 fatty acids.

By contrast, the product here comes from walleye pollock, a larger, less fatty fish, and is produced by processing the parts of the fish that remain after the fish is filleted. The oil initially derived from this material is not fit for human consumption, but (after being shipped to Ohio) undergoes a process called “trans-esterification.” The complaint alleges that the fatty acid ethyl esters that result are chemically distinct from natural triglycerides and lack many of the constituent components of natural fish oil. Given their different molecular structures, molecular weights, and chemical names, the compounds have different entries in the United States Pharmacopeia National Formulary, and their mass spectra indicate that they have different compositions. UN and WHO standards recognize a distinction between “fish oils” and “concentrated fish oils ethyl esters,” and the Global Organization for EPA and DHA omega-3s makes a similar distinction. Even U.S. Customs and Border Protection has weighed in, ruling that a trans-esterified product could not be classified under the section of the tariff schedule for “fish-liver oils and their factions, whether or not refined, but not chemically modified.” Of further note, the complaint alleged that these products “are less readily absorbed by the body than natural fish oils, and the compounds may differ in other ways that affect their consumption.”

Plaintiffs plausibly alleged that “fish oil” was not the “common or usual name” of the supplement Target sold, meaning that there was no express preemption, because plaintiffs were challenging conduct that allegedly violated the FDCA but not relying on the FDCA for the right to sue. The alleged differences between this supplement and “fish oil” went beyond mere processing and included material differences/changes in efficacy. Even if dictionary definitions of “fish oil” could be read to encompass the product, that wasn’t relevant at the motion to dismiss stage. While “vanilla” cases find that using the term to describe flavor is not deceptive, “[c]alling a product ‘fish oil,’ by contrast, is plausibly a claim about the provenance of the oil and its nutritive properties. That the Product derives ultimately from fish is not dispositive given the alleged difference in the production process and quality of the product.”

Defendants argued that “a representation about one ingredient actually present in a product does not imply the exclusion of other ingredients.” But so what? “[T]his case is about whether the key identified ingredient -- fish oil -- is what Defendants claim.” The complaint plausibly alleged that “oil from fish” includes only the triglyceride-based oil that exists naturally within fish, not any oily compound derived from fish.