The plaintiffs’ nutritional expert in litigation over the marketing of Horizon Organic Milk should be allowed to testify because he has personally researched how the brain is affected by nutrition and has concluded that the representation that this brand of milk helps brain health is untrue, the plaintiffs argued in a recent court filing.
The defendant has moved to strike or exclude proposed expert Richard Bazinet’s opinions. The plaintiffs asked him to assess the validity of the claims that Horizon Organic Milk, when supplemented with a source of an omega-3 fatty acid, DHA-derived algal oil, “Supports Brain Health” and “Supports a Healthy Brain.”
“As a nutritional scientist who has personally researched and published on how the brain uses fatty acids, Dr. Bazinet concluded the defendant’s brain health representations are ‘not true’ and that the DHA-derived algal oil supplement in the milk products was ‘superfluous and provided no measurable brain health benefits or support,’ ” the plaintiffs argued.
Bazinet, a professor at the University of Toronto, says that, even though the milk products supplied 32 milligrams of DHA per day, that “only one millionth or one ten millionth of dietary DHA makes it to the brain.” The milk products therefore would be insufficient to meet the human brain’s daily DHA requirements of four milligrams per day, according to the plaintiffs.
Moreover, while the DHA molecule is important for the brain, that does not mean that DHA from one’s diet supports brain health, the plaintiffs said.
Bazinet’s opinions are bolstered because he reviewed “gold-standard” randomized clinical trials studying algal DHA in humans, the plaintiffs said. “This case is unlike many, if not all, other false advertising cases involving a food product because the exact ingredient has been tested in [randomized clinical trials] to determine if it provides the advertised health benefit,” the plaintiffs said.
The defendant has not offered its own expert to contradict Bazinet, the plaintiffs said.
The multidistrict litigation over the marketing and sales practices of Horizon Organic Milk is pending in the federal Southern District of Florida.
Amaris Elliott-Engel contributes to law.com.