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On February 2, 2015, New York Attorney General Eric Schneiderman issued cease and desist letters to four of the largest retailers in the United States: GNC, Wal-Mart, Walgreens, and Target. Each of the four retailers manufactures and sells its own proprietary brand of herbal supplement products. However, according to DNA-testing as a result of the New Attorney General office investigation, most of the retailers’ product lines contained either a trace amount or absolutely none of the purported ingredient, such as Echinacea, Saw Palmetto, Gingko Biloba, and St. John’s Wort. Instead, the testing detected various fillers, such as rice, wheat, allium, and mustard. The cease and desist letters deemed many of the retailers’ products as “adulterated and/or mislabeled herbal dietary supplements;” in other words, they were “contaminated or substituted” products.

Unsurprisingly, state and federal courts have been flooded with class action suits seeking to compensate consumers who were victims of this apparent deception. A few consumers allege to be allergic to some of the fillers used in the retailers’ production process, while many others simply want to recoup the monies spent on the worthless merchandise. Sounds like a winner right? Not so fast.

The major problem consumers will face nationwide is the underlying tests that were used to unveil this alleged fraud, misrepresentation, and/or deception. Several medical experts have already discredited DNA testing in the context of herbal supplements because most of the products are actually herbal extracts, which may not contain any genetic DNA strands of the underlying herb. These critics say an herbal extract product may be “perfectly kosher,” even though the herb’s DNA cannot be detected.

To be sure, this will not stop health conscious consumers, or their lawyers, from pressing forward. That the retailers’ labeling did not include the added fillers may be enough for FDUTPA (in essence, false advertising) claims. In the United States, the market for herbal supplements and remedies is estimated to be $7.14 billion in 2015. By 2020, sales are projected to reach at least $9 billion. At the end of 2013, more than 36 million consumers, in the United States alone, confirmed their daily use of some form of herbal supplement in pursuit of healthy lifestyles.

Another issue consumers may face emanates from the FDA, which classifies herbal supplements as dietary supplements rather than prescription drugs. This classification, in turn, exempts manufacturers of dietary supplements from the stringent labeling regulations associated with prescription drugs. Moreover, the FDA has the ability to ban “adulterated” dietary supplements from the market, or sanction those whom produce them. At first blush, this seems beneficial to plaintiffs; however, it could cause a huge impediment if the retailers are able to convince the courts that the FDA is best fit to address these issues.

Anthony Halmon