Olly, the maker of many popular vitamin and mineral supplements, can’t escape a class action lawsuit accusing it of putting too much melatonin in its supplements, a federal judge has ruled.
On Jan. 17, U.S. District Judge Charles Breyer, in the Northern District of California, refused to dismiss the bulk of the class action against San Francisco-based Olly.
The lawsuit was filed last year by consumers who claimed the melatonin products they had purchased from Olly to help improve and regulate their sleep contained too much of the sleep hormone.
Breyer
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While the label claims the product contains 5 mg of melatonin per dose, the plaintiffs claimed their independent lab tests revealed the Olly supplements actually contain significantly more than that dose.
They claimed the excess melatonin in the supplements caused them to suffer from grogginess during the day, as well as “abnormally intense dreaming and associated sleep disruption.”
They claimed they would not have purchased the product if they knew it contained such large amounts of melatonin, which could allegedly disrupt their sleep patterns and result in the opposite of the effect desired when taking the supplements.
In response, Olly said the lawsuit should be tossed, because it seeks to impose a standard on it and other supplement suppliers beyond that required under the law and under regulations promulgated by by the Food and Drug Administration.
Olly claims the lawsuit essentially represents an attempt by trial lawyers and plaintiffs to sidestep federal law and force supplement makers to submit to standards not set by law.
In the decision, Judge Breyer noted the FDA has imposed no upper limit on the amount of a vitamin or mineral that might be contained within supplements.
The agency has established rules requiring such manufacturers and distributors to include enough of the substance in the product to ensure the product will contain at least the dose expressed on the label throughout the product’s shelf life.
With this in mind, the judge noted manufacturers routinely will put more of the vitamins and minerals listed on the label to ensure consumers receive at least what they believe they are purchasing, and to meet the FDA rules regarding minimum amounts. Typically, according to Breyer’s decision, that amounts to about 10-15% excess at the time of bottling.
But, despite no FDA standard regarding overages, the judge said the plaintiffs have a legitimate complaint if the product contains an excessive amount.
He rejected Olly’s argument that the plaintiffs are attempting to impose an illegal 10-15% overage standard on Olly and potentially other supplement makers.
“Plaintiffs do not argue that only a 10–15% overage would be reasonable, but that Olly’s overages are so excessive by comparison that they could not possibly be necessary to ensure ‘that the [melatonin] level does not fall below the label amount during the product’s shelf life,’” Breyer wrote.
“This might or might not be true: discovery can show how long it takes melatonin to degrade during a given product’s shelf life. In the meantime, Plaintiffs have invoked the correct standard.”
The judge also tossed aside Olly’s attempts to undermine the plaintiffs’ consumer fraud claims, by asserting consumers can’t sue if they get more of the product than they paid for.
“That is a rather disingenuous take on Plaintiffs’ allegations,” Breyer wrote. “It is not as if Plaintiffs got a box with 11 chocolates in it when they were expecting 10.
“Plaintiffs allege that they wanted to take an accurate amount of a neurohormone that affects their brains, that they trusted the label’s representation of how much of that neurohormone they were getting, and that the inaccuracy of that label was ‘alarming,’ such that the product was essentially worthless to them.”
The judge said he would allow the lawsuit to continue under California consumer protection law, and similar laws in other states.
Plaintiffs are represented in the action by attorneys Jonas B. Jacobson and Simon Franzini, of the firm of Dovel & Luner, of Santa Monica.
Olly is represented by attorneys Claudia M. Vetesi, Lydia Davenport and Nicole Ozeran, of Morrison & Foerster, of San Francisco and Los Angeles.