After a judge rejected an expert for plaintiffs claiming there were false nutritional claims made about Horizon organic dairy and soy milk, the plaintiffs have moved to have a defense expert thrown out.
WhiteWave Foods Company has fortified some of its dairy and soy beverages, including under the Horizon brand name, with omega-3 fatty acid docosahexaenoic acid (DHA) derived from algae. The company markets its products as supportive of brain health in children and adults.
The plaintiffs claim clinical studies have found no link between brain health and DHA algal oil supplements and that there already is enough DHA in Americans’ daily diets to not require special fortification.
Proposed defense expert Jeffrey M. Senger, a former lawyer for the U.S. Food and Drug Administration, should be excluded because he would only opine that milk containing algae with DHA Omega-3 is generally recognized as safe, the plaintiffs said.
“Plaintiffs do not allege that adding DHA Omega-3 derived from algal sources is not safe,” the plaintiffs said in their motion. “And, whether defendant’s fortified milk is safe for consumption has nothing to do with whether such products were deceptively labeled.”
Moreover, Senger is offering an opinion on legal issues, including an FDA statement that the agency would not object at the time to a brain health claim on WhiteWave’s products. The court, not Senger, should decide on the legal impact of the actions the FDA and the Federal Trade Commission took regarding the plaintiffs’ claims, they said.
Senger also does not have any special knowledge regarding the review taken by the FDA of WhiteWave’s DHA milk, the plaintiffs said.
U.S. Magistrate Judge John J. O’Sullivan of the Southern District of Florida granted WhiteWave’s motion to strike or exclude the testimony of Richard P. Bazinet, an expert in nutritional neuroscience and the plaintiffs’ general causation witness.
The plaintiffs did not address WhiteWave’s argument that Bazinet could not extrapolate the results of five studies in 49 women and 658 children from the United Kingdom to class actions involving every American purchaser of Horizon milk, O’Sullivan said. But the judge concluded that Bazinet’s testimony was relevant and fit the case. The class action plaintiffs are seeking O’Sullivan’s reconsideration of his decision.
The FDA recently barred makers of food and dietary supplements from claiming that their products are “high in,” “rich in” or an “excellent source of” omega-3 fatty acids. The new rule regards the omega-3 fatty acids DHA, eicosapentaenoic acid (EPA) and alpha-linolenic acid (ALA).
Amaris Elliott-Engel contributes to law.com.