‘Finest Nutrition’ class action removed to federal court by Walgreens; Retailer faces at least 22 similar suits

Walgreen Co. has removed to federal court a class action alleging it sold Walgreen-brand dietary supplements that don’t contain the materials they should, and instead contain materials that should not be in the supplements.

Walgreen Co. filed its notice of removal to the U.S. District Court for the Southern District of Illinois on April 2 through attorney Nicole E. Wrigley of Winston & Strawn LLP in Chicago.

The defendant argues that the district court has jurisdiction over the class action based on the Class Action Fairness Act, making removal proper. Jurisdiction is appropriate because the class consists of more than 100 members and the amount in controversy is greater than $5 million, the notice states.

Plaintiff Donald Weeks filed the class action on Feb. 17, claiming Walgreens sells dietary supplements including Gingko Biloba, St. John’s Wort, Ginseng, Garlic and Echinacea under the private house name “Finest Nutrition.”

Weeks claims that he purchased Gingko Biloba, which is said to have an ability to improve memory, from a store in Edwardsville several times within the last three years. He alleges the Walgreens-brand Gingko Biloba does not contain gingko biloba. Instead, it contains oryza, commonly known as rice, the suit states.

The class action was filed after a recent investigation by the New York Attorney General revealed that the Walgreens dietary supplements did not contain “DNA matching the product label.” The supplements were found to contain botanical material other than what was on the label or no plant DNA at all, the suit states.

“Using established DNA barcoding technology, analytic testing disclosed that five of the six tested dietary supplement products (all but the Saw Palmetto) were either unrecognizable or a substance other than what they claimed to be,” the complaint states.

The suit says that only 18 percent of the tests yielded DNA matching the product label; 45 percent tested for botanical material other than what was on the label; and 37 percent yielded no plant DNA at all.

The global market for herbal dietary supplements is estimated at $100 billion, according to the complaint.

“Herbal supplements are regulated by the Food and Drug Administration, but not to the same extent as prescription pharmaceuticals,” the suit says. “They have not been subjected to the same scientific scrutiny as prescription drugs.”

The World Health Organization states that the adulteration of herbal products is a threat to consumer safety, the complaint states.

The New York State Attorney General issued a cease and desist letter on Feb. 2, resulting in numerous class action lawsuits against Walgreens and other retailers across the country, the defendant claims in its removal notice.

“To date, at least 22 putative class action lawsuits have been filed on this issue that name Walgreens as a defendant,” the notice states.

The St. Clair County class action lists claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act and for unjust enrichment on behalf of Weeks. He defines the putative class as “all Illinois consumers who, within the three years preceding the filing of this complaint purchased Walgreens Finest Nutrition herbal dietary supplements in the State of Illinois.”

Weeks is represented by Thomas Rosenfeld of the Goldenberg firm in Edwardsville.

The suit seeks class certification, an order enjoining Walgreens from selling the products that don’t contain the ingredients as stated, compensatory and punitive damages, and attorneys’ fees

Madison County Circuit Court case number 15-L-203