Dakota Nutrition “Elderberry” Supplements Class Action

Elderberry has become a popular ingredient in supplements recently, the complaint for this class action alleges, because it purportedly has high levels of antioxidants and helps strengthen immune systems. It has become only more popular during the coronavirus pandemic. But the complaint alleges that the elderberry dietary supplements made by PS Global, LLC, which does business as Dakota Nutrition, contain very little elderberry at all.

The Nationwide Class for this action is all persons in the US who, during the maximum period of time permitted by law, bought the Dakota Nutrition products, primarily for personal, family, or household purposes and not for resale. A New York Subclass has also been defined for those in the above class who live in New York. The products at issue include the following:

• Extra Strength Elderberry 3-in-1 Immune Booster Capsules
• Extra Strength Elderberry Gummies
• Immune Defense 7-in-1 Immune Booster Capsules

The complaint says that elderberry supplements “skyrocketed” in popularity with the coming of Covid-19: “According to consumer reports, the sales of elderberry supplements [have] increased by 169% since the outset of the pandemic in comparison to sales from previous years.”

Pages 2 and 3 of the complaint show images of the bottles of the supplements at issue in this case. The complaint alleges that the representations on the products such as “Extra Strength” and “High in Antioxidants” were meant to distinguish the products from competing ones.

However, the complaint alleges that the products do not contain the amount of elderberry noted on the labels. “In fact,” the complaint claims, “the amount of elderberry that the Products possess is so de minimis that using the word ‘elderberry’ on the Products’ packaging is misleading…”

The National Advertising Division (NAD) investigated these issues, including reviewing laboratory tests provided by Dakota that tested both the raw ingredients and the finished products. The complaint quotes NAD as saying that the “results were, in some instances, inconsistent and inconclusive and otherwise did not confirm the existence of elderberry in the tested products.”

The complaint alleges that test results show only small amounts of elderberry in the products, with the Extra Strength 3-in-1 product having only 1.12 mg per capsule, instead of the 500 mg on the label) and the Immune Defense 7-in-1 product containing only 0.045 mg in two capsule, instead of the advertised 350 mg.

The complaint claims, “As a result of the huge disparity between the claimed versus the actual amount of elderberry present in [Dakota’s] Products, the NAD asked [Dakota] to discontinue the use of the word ‘elderberry’ in the name of the Products as well as all express and implied claims about their level of antioxidants and immune-related health claims.”

According to the complaint, Dakota agreed to comply with NAD’s recommendations but has not done so as of the date of filing of this complaint.

Article Type: Lawsuit
Topic: Consumer
Tags: Contains Too Little of Featured Ingredients, Deceptive Advertising, Deceptive Labels