Walgreens sold plant food as dietary supplement, consumers tell appellate court

MANHATTAN (CN) — Walgreens defended itself at the Second Circuit Thursday as a class of consumers sought to revive claims that the pharmacy chain passed off a chemical typically used in plant fertilizer as an effective dietary supplement.

The plaintiffs say Walgreens mislabeled its glucosamine sulfate, a supplement advertised as a treatment for osteoarthritis, because the product actually contains a blend of two different chemicals — glucosamine hydrochloride and potassium sulfate — neither of which are mentioned on the label.

“Only glucosamine sulfate is endorsed for the treatment of osteoarthritis by publicly available medical literature; glucosamine hydrochloride is not,” the consumers say in their brief.

“Additionally, potassium sulfate, the chemical mixed with glucosamine hydrochloride in defendants’ product, is most commonly used as a plant fertilizer and is not found in any dietary supplements.”

Jean-Claude Andre, an attorney representing Walgreens, disputed the consumers’ claims that the product often used as fertilizer renders the product “worthless.”

“Fertilizer is commonly used as a food flavoring agent and while they like to talk about it being poison and toxic and available at Home Depot, the reality is we ingest it all the time,” Andre, an attorney with Bryan Cave, said Thursday. “This case is not about fertilizer, that doesn’t make the product worthless.”

The consumers’ challenge previously was dismissed by U.S. District Judge Federic Block, who found the claims were preempted by the Federal Food, Drug and Cosmetic Act since the product satisfies a federally accepted identity test for glucosamine sulfate conducted by the United States Pharmacopeia.

Philip Black, an attorney with the New York City firm Wolf Popper, argued on behalf of the consumers.

When asked by U.S. Circuit Judge Richard J. Sullivan, a Donald Trump appointee, why his clients' claims would not be preempted by federal law, Black said the test conducted on the supplement to determine if it qualified as glucosamine sulfate was not appropriate for this product.

“The reason that the distinction between the forms of glucosamine and also the addition of potassium sulfate, which is fertilizer, is important for the case is that the manufacturer needs to select a test that can distinguish between the two forms of glucose,” Black said Thursday. “The USP test cannot distinguish between the forms of glucosamine.”

Sullivan then asked if the supplement’s “glucosamine sulfate” label would be the common name for the chemical blend listed in the ingredients.

“It seems to me that the FDA regulations suggest that supplements like this should be declared by their common or usual name,” Sullivan said. “And you’re basically saying that’s not true or we shouldn’t be following that?”

Black said “glucosamine sulfate” was not the common nor usual name for those two chemicals.

“Common usage is that glucosamine hydrochloride and glucosamine sulfate are separate chemicals. They’re not interchangeable,” Black said.

Andre, Walgreens’ attorney, held conversely that “glucosamine sulfate” was, in fact, the common name for the blend of chemicals used in the dietary supplements and disputed the consumers’ claims that the two ingredients comprised an “inferior” form of the advertised product.

“Once either one hits your tongue and goes into your body, it nearly dissolves in the exact same four ions in the same quantity and so it doesn’t matter,” Andre said.  

The International Vitamin Corporation, the manufacturer of the dietary supplements sold at Walgreens, is also named as a defendant.

U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee, and U.S. Circuit Judge Robert Sack, a Bill Clinton appointee, joined Judge Sullivan in Thursday's proceedings. The hearing adjourned without a ruling.

Neither party’s attorneys responded to a request for comment.

Follow @NikaSchoonover

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