Another class action filed over immune system product

Kelly Holleran Jan. 27, 2009, 11:31pm

A class action lawsuit filed in St. Clair County on Jan. 22 alleges NBTY engaged in unfair and deceptive practices designed to mislead the public when marketing its "Ester-C" products.

Class plaintiff Eian D. Warma alleges NBTY misled the public into believing Ester-C products were better than Vitamin C because they offered 24-hour immune protection and "enhanced absorption with C-Sorb."

Paul M. Weiss, George K. Lang and Eric C. Brunick of Freed and Weiss in Chicago, Richard J. Burke of St. Louis and Kevin T. Hoerner and Brian T. Kreisler of Becker, Paulson, Hoerner and Thompson in Belleville represent Warma and the putative class.

They are the same group of lawyers who have filed at least four other similar class action suits in St. Clair County. On Nov. 21 they sued Kmart; on Dec. 1 they sued CVS and Ideavillage and on Dec. 31 they sued Target over their cold medicine products.

"NBTY markets Ester-C to create the reasonable expectation with purchasers that Ester-C protects users from illness caused by viruses and bacteria, is a form of immune system protection or defense, and decreases one's likelihood of getting or remaining sick," the complaint states.

Warma claims NBTY's "unfair and deceptive" scheme has caused him and the class to incur damages because the product had no medical efficacy.

Warma also alleges NBTY's Web site makes numerous deceptive and misleading representations that were also intended to convince consumers that Ester-C bolsters the immune system.

"However, in truth and fact, Ester-C does none of these things, its medical efficacy assertions are false, and Ester-C products do not cure or prevent illness and/or bolster the immune system," the complaint states.

Warma claims on its packaging, NBTY represents that C-Sorb, one of the ingredients in Ester-C, is a bioflavonoid compound.

According to Warma, there is no evidence to suggest that the level of the bioflavonoid compound has any effect on the bioavailability of Vitamin C.

Warma is asking that the case be certified as a class action, that a final judgment be rendered against NBTY and that the court award him and the class damages, attorneys' fees, costs of the suit and other relief to which they may be entitled.

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