On April 18, 2017, Judge Michael Vasquez granted summary judgment to Bayer in a consumer class action over its probiotic dietary supplement Phillips’ Colon Health. In re Bayer Phillips’ Colon Health Probiotics Sales Practices Litigation, No. 11-03017 (D. NJ). This important decision should help rein in the onslaught of lawsuits that improperly target dietary supplements.
First, the Court’s decision reinforces that dietary supplements are not regulated as drugs, and structure function claims need not be supported by randomized controlled clinical trials (RCTs).
Second, the opinion makes clear that private consumer class actions cannot be premised on a “lack of substantiation” theory.
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