Judge Charles Breyer, of the Northern District of California, has largely denied Zarbee’s Inc.’s motion to dismiss a suit alleging that the defendant fraudulently underrepresents the melatonin content of their gummies.
Per the first amended complaint, the plaintiff purchased Zarbee’s 1mg melatonin gummies to help her eight-year-old child sleep. She alleges the companies advertised this low dose as being safe and relatively side-effect free for children. However, as described in court documents, she noticed next-day grogginess she deemed unusual for such a low dose. She describes her child as being “unusually subdued” the following day.
As such, she tested samples of the gummies using liquid chromatograph-mass spectrometry analyses and found they contained more than twice the advertised melatonin dosage. Thus she filed suit alleging false advertising.
Zarbee’s filed a motion to dismiss for failure to state a claim and lack of standing. They argue that since the Food and Drug Administration (FDA) sets no upper bound for the acceptable actual dosage versus advertised dosage on melatonin supplements, they did nothing wrong. At issue with this dispute is FDA regulations stating that supplements should not contain so much of the active ingredient to be “in excess of the amount actually needed to meet the label declaration.” While Zarbee’s cited Ochoa v Church & Dwight Co., Inc., Judge Breyer ruled that this case in fact supports the plaintiff’s argument, since she argued that the alleged more than doubling of the advertised dose is well in excess of what would be reasonably required to ensure the gummies retain a dose at or slightly above 1mg until their expiration date.
Next, Zarbee’s argued the plaintiff’s claims are preempted because she did not follow the FDA’s required testing protocol. Judge Breyer, again, disagreed, citing Lozano v. Bowmar Nutrition LLC, to state that the plaintiff does not need to meet the same testing standard at this stage. Her own testing was enough to plausibly infer that the aforementioned gummies may contain too much melatonin.
Regarding the plaintiff’s supposed lack of standing, Zarbee’s argued she could not represent a classes covered by state laws other than California; she disagreed, stating the laws of the five other states named do not significantly differ from those of California. Judge Breyer cited numerous cases that have landed on either side of this issue, but for this case he ruled that the state case load is low enough that such an issue can be resolved at a later stage.
Judge Breyer did grant the motion to dismiss in one respect. In her first amended complaint, the plaintiff claimed an injury from other forms of melatonin supplement sold by Zarbee’s which she did not buy. Judge Bryer narrowed her case to just the gummies she did buy since at issue is not the presence of melatonin, but how much melatonin. He states that it is not a reasonable inference that all Zarbee’s melatonin supplements have this same alleged underrepresentation. The plaintiff does has leave to amend.
Plaintiff’s counsel is Dovel & Luner LLP. Zarbee’s is represented by Lafayette & Kumagai LLP and Patterson Belknap Webb & Tyler LLP.
