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Judge Boots Diet-Supplement Class Action

SAN FRANCISCO (CN) - In keeping with federal policy that loosely regulates diet supplements, a federal judge dismissed a proposed class action against SanMedica International for its so-called human growth hormone booster.

Lead plaintiff Serena Kwan sued SanMedica on July 21, after seeing ads for its "SeroVital" product on the Dr. Oz show and in Shape magazine, neither of which are parties to the lawsuit.

SanMedica manufactures and pushes SeroVital as an over the counter supplement to boost human growth hormone. Kwan claimed that SanMedica advertised: "(1) that SeroVital provides a 682% mean increase in HGH levels; (2) that SeroVital is clinically tested; and (3) that 'peak growth hormone level,' are associated with 'youthful skin integrity, lean musculature, elevated energy production, [and] adipose tissue distribution,'" according to U.S. Magistrate Judge Maria-Elena James's Oct. 30 order.

SanMedica sought dismissal on the grounds that Kwan brought only "substantiation claims," which have no private right of action, and even if that is not the case, then she failed to show that its claims are false.

Kwan cited articles from the FDA and the New England Journal of Medicine, but James found that "(t)he first problem with these rather bare-bones allegations is that none of the authorities cited actually refer to SeroVital. The Court therefore cannot infer from these statements that Defendant's advertising claims are false."

James also found that the publications were 11 to 20 years old, and "may well be irrelevant because they refer to a world in which this product did not exist."

She granted SanMedica's motion to dismiss, with leave to amend by Dec. 1.

Diet supplements, as opposed to drugs, are virtually unregulated in the United States, unless consumers can show they contain regulated drugs. Congress has refused to regulate them.

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