Court revives lawsuit against supplement maker, applies lower bar for mislabeling claims
June 23 (Reuters) - A U.S. appeals court revived a proposed class action against a dietary supplement company on Monday, ruling that a single test showing its product had a misleading nutrition label was enough for the case to move forward.
The San Francisco-based 9th U.S. Circuit Court of Appeals reversed a lower court's ruling that had dismissed a lawsuit against ProSupps USA over claims that its Hydro BCAA product had far more carbohydrates and calories than the label listed.
The appeals panel said, opens new tab the plaintiff, Jacob Scheibe, had enough initial evidence to accuse ProSupps of mislabeling its product under California law, rejecting the lower court's holding that Scheibe needed to use a more elaborate testing regimen set by the U.S. Food and Drug Administration.
The ruling means that in the 9th Circuit, where district courts have issued varying rulings on product testing requirements for lawsuits alleging mislabeling under state law, it could become easier for consumers to bring such claims.
The 9th Circuit said that in the initial phase of a lawsuit, a plaintiff doesn't have to follow the full FDA sampling process to accuse a company of using a false nutrition label.
For labels on products fortified with protein and other nutrients like those sold by ProSupps, the FDA requires testing on 12 samples, each taken from different lots of product, a nearly impossible thing for an everyday customer to replicate, said Charles Weller, the attorney for the plaintiff. Until now, some courts in the 9th Circuit were requiring it before a mislabeling lawsuit could be filed, he said.
Representatives for ProSupps did not immediately respond to requests for comment.
Customer Jacob Scheibe filed the proposed class action against the company in 2022, claiming that the label on the Hydro BCAA powdered supplement said they contained zero carbohydrates and zero calories, but a test using an FDA-prescribed process showed the product had more than five grams of carbohydrates and more than 50 calories per serving.
He brought claims under California's consumer deception laws on behalf of a class of California ProSupps customers.
The trial court dismissed the lawsuit, agreeing with ProSupps that Scheibe needed to use the 12-sample method to avoid having his claims preempted by federal labeling law.
In its ruling reversing the lower court, the appellate court said Scheibe's one test of the product and the results that showed a significant difference from what the label read were enough to allow an inference that more testing would also show the label was wrong.
The case is Scheibe v. ProSupps USA LLC, U.S. Court of Appeals for the 9th Circuit, No. 23-3300
For the plaintiffs: Charles Weller
For ProSupps: Jessica Walker of Theodora Oringher; and Jaikaran Singh of Foley & Lardner
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