(CN) — A federal judge on Tuesday dismissed part of a lawsuit filed against the producer of Ensure, the line of milkshakes that are used as dietary supplements or meal replacements.
The suit, which is seeking class action status, was first filed in October by two named plaintiffs, Condalisa LeGrand and Larissa Bates. They charged Abbott Laboratories with, among other things, intentional misrepresentation and falsely mislabeling their products, and for using such phrases as "Complete, Balanced Meal Replacement" and “#1 Doctor Recommended Brand” on its packaging. Since a typical bottle of Ensure contained 22 grams of sugar per serving, the plaintiffs argued, the company's claims that its drinks were "balanced, nutritious and healthy" were false and misleading.
In December, Magistrate Judge Thomas Hixson threw out parts of the original complaint, including all the claims made by Bates. The judge found that LeGrand could potentially argue that some phrases used by Ensure, such as “advanced nutrition shake,” “therapeutic nutrition shake,” “nutrition drink,” and “nutrition powder” were misleading. Others, like “Complete, Balanced Meal replacement," “Complete, Balanced Nutrition,” “our most advanced nutritional product,” and “All in One... Heart Immune Digestion,” could not be used by LeGrand to make a false advertising claim. Federal law preempted LeGrand's argument that some of those phrases were contradicted by Ensure's sugar content.
LeGrand filed a much–amended version of the lawsuit in March. The number of allegedly false and misleading phrases were pared down — though curiously, the phrase “All-in-One blend to support your health” remained, this time under a different justification: that the Food and Drug Administration "prohibits the use of the word ‘health’ in nutrient content claims on foods that are not 'low fat' or 'low saturated fat.'"
Hixson nixed this claim in Tuesday's ruling as well, as LeGrand never purchased any product with that phrase nor can she "avoid preemption by alleging that an implied nutrient content claim is misbranded due to one nutrient (fat), then challenge that same claim with respect to another nutrient (sugar)."
The rest of the suit, meanwhile, survives, at least for now. LeGrand can still challenge some of Ensure's various claims as false and misleading because of its sugar content, including claims made on products she's never actually tried.
LeGrand's attorney, Melanie Persinger, declined to comment on the ruling. Abbott Laboratory's attorney, Mark McKane, did not immediately respond to requests for comment.
Ensure's advertising has long been the subject of criticism. In 1995, the Center for Science in the Public Interest called one of Ensure's advertisements ''the most misleading food ad" of the year. Two years later, the Federal Trade Commission entered into a settlement with Abbott over three claims: that Ensure was recommended by doctors as a way for people to stay active and healthy, that doctors recommended it more than any other nutritional supplement, and that the product had the same amount of vitamins as a multivitamin supplement.
“Nutritional beverage products like Ensure may provide a benefit if you have a medical condition that makes it difficult to eat or if you are using them in place of an occasional skipped meal,” said Jodie Bernstein, then the Director of the FTC's Bureau of Consumer Protection. “Abbott went too far, however, when it suggested that doctors recommend Ensure for healthy, active people, like those pictured in the ads, in order to stay active and healthy. Before consumers spend their money to use such products as a regular supplement to their diet, they should check with a doctor or nutritionist.”
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