FDA Week interviewed Manatt's Ivan J. Wasserman, a partner in the firm's Advertising, Marketing & Media Division, and Brad W. Seiling, a partner in the firm's Litigation Division, on the recent uptick in class action lawsuits against dietary supplement companies that arise from Federal Drug Administration warning letters.
FDA Week, a publication of Inside Health Policy, reports that there are now more instances where small advertising and labeling violations are spurring large class action suits against dietary supplement companies. It has become an emerging trend that plaintiffs' lawyers look to FDA warning letters as a source of civil class action suits.
"Up until two or three years ago, I would say if a company received a warning letter from the FDA for a labeling or advertising violation, the ramification to the company for that type of warning letter was a change to the labeling going forward," said Wasserman. "Now, for whatever reason, a letter like that is likely to result in a class action."
Wasserman said that the results reflected no change in FDA practices, but that plaintiffs' attorneys have really started to seize on advertising and labeling claims as a source of cases.
"To a certain extent, some of this is flavor of the month," he said. "You see activity in a certain area and suddenly there's a class action. So someone sues company A and a lawyer sees that and says 'I know a similar company' and goes after that. It's just the way things work, in cycles and waves."
Legal observers noted that the cases were particularly common in California, where there are more favorable consumer protection laws and where consumers could take companies to task for violating federal laws.
"In California, a violation of the federal law is a violation of the unfair competition law," said Seiling. "Just about every class action suit in California uses it as a basis."