Hope For Class Action
The manufacturer GARLIQUE ® dietary supplement has lost its motion to have a consumer fraud case filed against it in a Florida court thrown out.
On Thursday, the U.S. District Court Southern District of Florida issued the ruling on behalf of consumer, James Wilson.
Wilson, of Jupiter, Florida, had filed the complaint in May charging the company misrepresented the effectiveness of the product in fighting cholesterol. An amended complaint was filed in September, and supplement maker, Chattem Inc. filed to have the case dismissed.
Smith and Vanture, LLP, a law firm based in West Palm Beach, would like to make this a class action.
Attorney Brian W. Smith (and an IB member) tells IB News “We are pleased with the court’s decision to deny the motion to dismiss this case. GARLIQUE ® is a product that is a popular alternative to traditional medications for people that are battling cholesterol problems. We believe that consumers have a right to full disclosure about the effectiveness (or lack thereof) of the products that they purchase.”
Chattem Inc., is facing four causes of action: Breach of Implied Warranty of Fitness for Particular Purpose; Breach of Express Warranty; Negligent Misrepresentation; and Intentional Misrepresentation.
Chattem, a Tennessee corporation, manufacturers a portfolio of over-the-counter health care products, toiletries, and dietary supplements, including GARLIQUE ®. An attorney for the company did not respond by publishing time, but is welcome to at any time.
Consumers are told the supplement has a beneficial effect on cholesterol levels and cardiovascular health. After all, that’s what the product maker said in print, radio and television ads.
The product label says “#1 Pharmacist Recommended,” “Guaranteed a World Leader in Garlic Potency,” so with representations like that, how could he lose?
The label says:
“World leader in product potency
"Allicin yield — the amount of allicin that can be produced when the alliin and allinase in garlic combine — is an important measure of garlic’s potency and effectiveness. Specially grown in rich fertile soils, the garlic used in GARLIQUE has the very highest allicin yield. It is processed with extreme care and attention, guaranteeing that the potency is preserved as it is ground into a fine ivory white powder. Independent laboratory testing proves that each GARLIQUE tablet yields at least 5000 mcg of allicin.”
A Breach of Express Warranty means that the plaintiff purchased a product relying on the express warranty by the company, in essence a promise about the product, then the product fails to conform to those promises.
With sales of at least $300 million a year for Chattem Inc., upward of two million Americans may have taken GARLIQUE ® and relied on its promises, says Howard Rubenstein, co-counsel on the case.
Wilson was told by his doctor that he had elevated cholesterol. After trying a course of prescription medication he didn’t like the side effects, his doctor suggested garlic supplements. So he shopped around and was sold on the wording on the label of GARLIQUE ®. It didn’t hurt that broadcast personality, Larry King, has been touting it for years on the radio, as have numerous television and print ads.
The concern is that individuals may be dissuaded from taking Crestor or Lipitor, prescription drugs for cholesterol, and go for the natural product because of the promises.
“I think this product should be marketed differently. It should not be marketed in a manner people with high cholesterol should get off their medication,’ says Rubenstein adding the problem is, "all of a sudden you have a heart attack."
The product box does include a disclaimer in small print, “These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure or prevent any disease.”
While misrepresentations on a dietary supplement label generally fall under FDA regulations, under the Obama administration federal pre-emption doesn't apply.
“Any state or a lawyer in any state can bring a suit for deception it doesn’t require the involvement of the FDA,” says Rubenstein.
GARLIQUE ® is a top seller for Chattem. Marketed under the SunSource umbrella, other products in the line include Melatonex, GARLIQUE ®, CardioAssist, and Omnigest. #