By Amanda Bronstad, from The National Law Journal

The plaintiffs bar has filed more than 50 class actions in the past month that accuse retailers like Target Corp. and Wal-Mart Stores Inc. of widespread fraud through the sale of herbal supplements.

The lawsuits cite New York Attorney General Eric Schneiderman’s findings last month that just 21 percent of herbal supplements subjected to a series of tests in his office had DNA of the plants listed on the labels. In most cases, the results found various unlisted fillers, including houseplants and rice. Schneiderman has subpoenaed Target Corp., Wal-Mart Stores Inc., GNC Holdings Inc. and Walgreen Co., insisting that they explain the ingredients in their products.

Plaintiffs lawyers expect that more companies will be named in their lawsuits, in addition to the defendants already identified.

“You have companies that say they’re selling a particular product that contains certain ingredients and, in fact, many of their products don’t contain the ingredients they say is in the product,” said Jason Zweig, head of the New York office of Seattle-based Hagens Berman Sobol Shapiro, which filed a class action against all four retailers last month. “Unlike a lot of claims with different food products that seem to be focused primarily on issues regarding efficacy or the amount of fat, or all natural, this is just an outright brazen fraud by these companies.”

Industry groups have challenged the science behind the findings, arguing that the tests are unreliable because DNA gets destroyed in the manufacturing of herbal supplements.

“The litigation is likely to focus in substantial part on the testing criteria,” said Daniel Girard, managing partner of San Francisco’s Girard Gibbs, who filed a class action against Target.

GNC, represented by John Hooper, a partner in the New York office of Reed Smith, is seeking to debunk the attorney general’s science and, on March 10, announced that a new round of its own tests found its Herbal Plus products to be “safe, pure, properly labeled and in full compliance with all regulatory requirements.”

Wal-Mart, which faces the most lawsuits, has retained Kevin Rising, a partner in the Los Angeles office of Indianapolis-based Barnes & Thornburg. Spokesman Randy Hargrove said the products at issue were found to be safe in tests the manufacturers conducted.

Walgreen has retained Amanda Groves, a partner in the Charlotte office of Chicago-based Winston & Strawn. Spokeswoman Emily Hartwig said Walgreen is reviewing the matter and will cooperate with the attorneys general.

A spokesman for Target, which has retained Jonathan Paikin, a Washington partner at Wilmer Cutler Pickering Hale and Dorr, declined to comment.

The global market for herbal supplements and remedies, which are not regulated by the FDA, is projected to reach $115 billion by 2020, according to a report released last month by Global Industry Analysts Inc. Many of the fastest-growing supplements, such as ginseng and St. John’s wort, were among the six tested by Schneiderman’s office. The tests found that 35 percent of the products actually contained fillers and allergens, such as wheat.

In addition to the four retailers, Schneiderman sent letters to four brand-name manufacturers. He’s also expanded his investigation to include attorneys general from Connecticut, Indiana and Puerto Rico.

In court, plaintiffs attorneys have accused the companies of violating various state consumer fraud statutes by misrepresenting the ingredients in their products. Zweig said his case isn’t limited to the herbal supplements that Schneiderman tested. “We have information that suggests that what the attorney general has uncovered is not specific to these herbal supplements that he disclosed in his letters,” he said.

Plaintiffs lawyers have asked the U.S. Judicial Panel on Multidistrict Litigation to coordinate the cases before a single judge, advocating for several courts in Arkansas, California, Florida, Illinois, Ohio and Kentucky. The panel is expected to take up the matter at its May 28 hearing in Minneapolis.

The retailers have pulled some products from shelves but so far haven’t responded in court.

Photo: Anna Bryukhanova/iStockphoto.com

For more on this story go to: http://www.nationallawjournal.com/id=1202720685258/Herbal-Supplements-Class-Actions-Piling-Up#ixzz3UekzQBqK