P&G Must Face Suit Alleging Excessive Melatonin In Sleep Aid
P&G Must Face Suit Alleging Excessive Melatonin In Sleep Aid
Written By: Henrik Nilsson
RE-posted from Law360 (May 24, 2023, 9:24 PM EDT) — An Illinois federal judge on Wednesday trimmed a proposed class action alleging the Procter & Gamble Co.’s sleep aid products contained 150% more melatonin than stated but ordered that the company must still face the bulk of the allegations, saying the claims are not preempted and sufficiently allege deceptive conduct.
In a 15-page order, U.S. District Judge Mary M. Rowland granted and denied in part P&G’s motion to dismiss Lynda Calderon’s suit claiming the company put excessive amounts of melatonin in its Pure Zzzs product line without displaying the correct amount on the labels, causing grogginess and headaches in violation of Illinois consumer protection laws.
Testing revealed that P&G’s Pure Zzzs Melatonin Chamomile & Lavender Gummies had 163% more melatonin than was listed on the label. The Pure Zzzs Nightly Sleep Tablets had 150% more melatonin than listed, according to the order.
Judge Rowland narrowed the suit to focus only on the tablets and not the entire product line, as Calderon never purchased the gummies. The judge also denied Calderon’s injunctive relief claim, saying she is now aware of P&G’s alleged deceptive practices and fails to show that she would suffer future damages.
But P&G must still face allegations of deceptive conduct and potential damages, the judge found.
Judge Rowland pushed back on P&G’s claim that the suit is preempted by federal law. While the U.S. Food and Drug Administration allows for reasonable overages of melatonin to ensure consistent levels throughout the product’s shelf life, Calderon claims that P&G excessively stuffed its products in violation of FDA regulations, Judge Rowland noted.
“Calderon simply states that the excess is unreasonable as it contains more than is needed to meet the label declaration throughout the supplement shelf life,” Judge Rowland said. “In addition, she claims, consumers do not ‘want to take random, uncontrolled amounts of a neurohormone that alters brain chemistry.'”
P&G also claimed preemption because Calderon only tested two bottles of Pure Zzzs, while the FDA requires testing of at least 12 samples to determine an excess. Judge Rowland, however, said the test results are sufficient to survive the pleading stage but “can certainly be challenged at a later stage.”
P&G sought in the alternative to stay the case, allowing the FDA to weigh in on whether the company violated the agency’s dosing regulations. But Judge Rowland denied, pointing out that federal courts can interpret FDA regulations concerning labeling and manufacturing practices.
Calderon’s deceptive conduct claim under the Illinois Consumer Fraud and Deceptive Business Practices Act also survives, as she alleges that P&G misled customers by claiming that the product contained less melatonin than actually stated, Judge Rowland said. She added that interpretation of labels is a question of fact and not resolved in a motion to dismiss.
Calderon filed the underlying suit last June, alleging that she would not have bought the product if she knew it contained excessive levels of melatonin, claiming P&G deceived her into buying a higher dose than she wanted.
P&G noted in its motion to dismiss that Calderon’s damages theories “defy common sense,” saying that Calderon got more of the product than she paid for.
But Judge Rowland said the damages claim is sufficient at the pleading stage as Calderon argues that P&G’s misrepresentation makes the sleep aid “worthless.”
Counsel for Calderon declined to comment Wednesday. Lawyers for P&G could not be immediately reached for comment.
Calderon is represented by Jonas B. Jacobson and Simon Franzini of Dovel & Luner LLP and Timothy J. Haller of Haller Law PLLC.
Procter & Gamble is represented by Henry Liu and Dillon Grimm of Covington & Burling LLP and P. Russell Perdew and Alyssa M. Gregory of Locke Lord LLP.
The case is Calderon v. The Procter & Gamble Co., case number 1:22-cv-03326, in the U.S. District Court for the Northern District of Illinois.
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