Dietary Supplements and Over-the-Counter (OTC) Products

About the Team

Lawyers on our team are recognized as leading practitioners by a variety of publications. This includes Chambers USA, Benchmark Litigation, and The Best Lawyers in America. Several members of our team provide nuanced regulatory and enforcement insight gained from working in and closely with major governing bodies, including the FDA and the FTC.

Representative Matters

A selection of our recent work includes representing:

• A supplement company in several lawsuits seeking certification of nationwide classes of consumers who purchased probiotic supplements. Plaintiffs asserted that the statements in the labeling and advertising (relating to benefits to the digestive and immune systems) are not substantiated and, therefore, are false and misleading. We won summary judgment in class actions in New Jersey and California and plaintiffs’ appeals were dismissed. We also won a bench trial in the District of New Jersey where the court rejected claims by the FTC that the company lacked substantiation for its claims and denied the government’s attempt to hold the company in contempt of court and to fine our client hundreds of millions of dollars.
• A supplement company in a class action alleging false and misleading labeling and marketing of the company’s calcium dietary supplement. The complaint was based on an adverse National Advertising Division (NAD) order.
• An OTC drug manufacturer in a class action alleging inaccurate expiration dates for the client’s aspirin products. The plaintiff dropped the case after dismissal of class allegations and the partial granting of a motion to dismiss.
• A major vitamin and dietary supplement maker in class actions filed by consumers in California, Florida and Illinois, alleging that “brain function support” claims in the labeling and advertising of our client’s gummy dietary supplement are false and misleading. The Court granted, in part, our motion to dismiss, after which we obtained a favorable individual settlement.
• Vitamin and nutritional supplement companies in nationwide class actions challenging the marketing and labeling of nutritional supplements sold under various brand names and private labels. Sidley negotiated a nationwide settlement that resulted in the dismissal of all of the pending cases, as well as the release of any other claims related to dozens of similar products not named in the complaint.
• Natural Factors in a putative false advertising class action in California related to betaine products labeled as “derived from beets.” After we filed a motion to dismiss, the plaintiff chose to settle on an individual basis.
• A cosmetic company’s advertising claims of a “body contouring” system in a proceeding initiated by the NAD. After submitting substantial scientific support amplified at a presentation to NAD lawyers, NAD found that the firm had shown a reasonable basis for the primary claims at issue.
• A dietary supplement maker in a NAD proceeding requesting substantiation of a wide variety of claims and statements on the firm’s website and in social media. Based on our presentation of scientific and legal analyses in submissions and a presentation to NAD, NAD took no action with respect to the claims.