CSPI joined a federal appeal attempting to reverse an inaccurate finding that federal law preempts consumers from bringing actions under state law alleging that manufacturers sold dietary supplements with misleading labeling.

In December 2019, the Litigation Department joined an ongoing class action lawsuit against Costco and NBTY, Inc. for misleading brain health claims on their ginkgo biloba dietary supplement, TruNature Ginkgo Biloba with Vinpocetine.  The lawsuit alleges that the vast weight of scientific evidence shows that the product does not provide any mental clarity and memory benefits.

District Court Summary Judgment Order

In June 2019, the District Court dismissed the lawsuit concluding that so long as manufacturers have some scientific support for their label claims—no matter how suspect or how heavily outweighed by contrary evidence—federal law permits those claims.

Ninth Circuit Appeal

In July 2019, the plaintiff appealed that decision to the Court of Appeals for the Ninth Circuit. Believing the District Court inaccurately concluded that federal law preempts consumers from bringing actions under state law alleging that manufacturers sold dietary supplements with misleading labeling, CSPI’s Litigation Department joined the plaintiff’s legal team to assist with the appeal.  

A panel of the Ninth Circuit heard oral argument in January 2021, and made favorable references to a recent Ninth Circuit case called Kroessler v. CVS Health Corporation. In Kroessler, the Court held that the plaintiff’s state law claims for misleading dietary supplement labeling were not preempted by federal law so long as the plaintiff provided scientific studies directly refuting the claims on the labels.  

At the end of December 2021, appellant’s lead counsel’s law firm dissolved, and in January 2022, appellant voluntarily dismissed the case.

Status: Closed

Outcome: Appellant dismissed the appeal after her lead counsel’s law firm dissolved

Plaintiff: Tatiana Korolshteyn

Counsel: CSPI’s Litigation Department, Bonnett Fairbourn Friedman & Balint, PC (lead counsel), and Public Justice PC

Jurisdictions & Case Numbers: 3:15-cv-0709 (S.D. Cal.); 19-cv-55739 (9th Cir.)