Consumer accuses retail giant of diluting its product

Good for What Ails You

Fish oil, despite its inherently queasy name, is big, big business – it’s predicted by some that the industry will reach slightly more than $4 billion by 2022.

And this makes sense. Unlike many of the supplements and health products we report on, fish oil hasn’t run afoul of regulators. Quite the opposite: The product’s bona fides include Food and Drug Administration-adopted claims that fish oil reduces the likelihood of coronary heart disease.

That’s why it was initially surprising to hear that Norman Leibowitz, a resident of Glendale, New York, filed a class action against Costco for its claims regarding its own fish oil product.

Leibowitz claims that two lab tests – one run by Consumer Labs and the other by a privately hired company – prove that Costco’s “Wild Alaskan Fish Oil” is not what it seems. The product’s front label caught Leibowitz’s eye. The label, he alleges, reads, “the Product contains 1050 mg of Unsaturated Fatty Acids, consisting of 330 mg of Total Omega-3 Fatty Acids and 720 milligrams of Omega Fatty Acids 5,6,7,9, & 11 per serving.”

But the testing didn’t agree.

Consumer Labs, according to Leibowitz, discovered that “the product contained only 346.1 mg total omega-5s, 6s, 7s, 9s and 11s, which is only 48.1 percent of the promised amount of such omegas.” Leibowitz’s counsel commissioned a separate study, which found that the oil contained less than half of the promised amount of omega-3 fatty acids, and less than one-quarter of the acids.

Leibowitz claims the fact that Kirkland’s fish oil contains a much lower amount of omega-3 fatty acids than advertised misleads consumers like him. He claims he would not have purchased the product at its sale price had he known its true contents.

BPA is bisphenol A, an organic synthetic compound used to make various forms of plastic. The health risk posed by food packaging containing BPA is a matter of some controversy within the worldwide regulatory community. The Food and Drug Administration (FDA) went so far as to ban it from baby bottles, and health organizations have urged an outright ban. Those who decry its use associate the substance with obesity, neurological damage, cancer and fertility issues.

The Takeaway

This case illustrates that clearance of marketing claims does not end with substantiation of product benefit claims. Labeling can also be deceptive, and inaccurate product ingredients – or inaccurate measurement of them – can be the basis for false and deceptive advertising claims.Leibowitz’s suit, lodged in the Eastern District of New York in late February 2018, accuses Costco of unlawful and deceptive trade practices under New York General Business Law and violations of the New York False Advertising Act, among other charges.