A New York federal court has denied Ester-C’s motion for partial summary judgment in a false advertising putative class action, finding that the plaintiffs’ challenge to the phrase “immune support” on the Ester-C supplement label is not preempted by federal law. Hughes v. The Ester C Co., No. 12-0041 (E.D.N.Y., order entered March 27, 2015). The plaintiffs alleged that Ester-C falsely advertised its namesake supple- ments as supporting the immune system, decreasing the likelihood or recovery time of illness and providing a superior source of vitamin C.
In its motion for partial summary judgment, Ester-C argued that the challenge to the “immune support” phrase on the label was preempted by federal law because the U.S. Food and Drug Administration and the Food, Drug, and Cosmetic Act directly address what statements manu- facturers may and may not make on nutritional supplement labeling. The court disagreed, finding that the “immune support” claim is part of a broader challenge to the representations that Ester-C made on its label.
“Were ‘Immune Support’ the sole claim being challenged by Plaintiffs on Ester-C’s packaging, Defendants might be correct. . . . However, Defen- dants’ motion artificially narrows the nature of Plaintiffs’ claims, which do not hinge exclusively on Ester-C’s ‘Immune Support’ statements. Rather, Plaintiffs assert that Ester-C’s ‘immune support’ statements, in combination with the disease prevention/treatment statements that appear in the packaging and marketing of Ester-C products, constitute misleading representations as to Ester-C’s health benefits.”
Accordingly, the court dismissed Ester-C’s motion, allowing the “immune support” challenge to be considered as part of the plaintiffs’ misrepresen- tation claims.