Nature's Bounty defends synthetic 'fish oil' supplements in consumer class action appeal

MANHATTAN (CN) — The vitamin and nutritional supplement company Nature’s Bounty defended its “fish oil” product in the Second Circuit Tuesday after consumers claimed the company misled them by advertising the product as fish oil, when it is in fact a synthetic Omega-3 product.

Mashon Baines and Nancy Froning, the named plaintiffs in the class action, said the product doesn’t follow the basic process in which fish oil is made: Small, oily fish are “caught, cooked, pressed, bleached and deodorized before being encapsulated and bottled.”

“The process begins with raw material, fish, and ends with crude fish oil,” plaintiff attorney Michael Braun of Kuzyk Law wrote in his brief.

Nature Bounty’s supplements, on the other hand, are made in an intense chemical process where an industrial solvent is used to transform fish oil by breaking its molecular bonds, Braun argued; the resulting product is synthetic because it is a fatty acid ethyl ester, which is produced by reacting crude fish oil in a free fatty acid form with ethanol.

“I don’t see how a reasonable consumer wouldn’t be deceived… There’s nothing more important than the statement of identity,” Braun said during oral arguments on Tuesday. “Fish oil is not an Omega-3 and it’s certainly not a synthetic Omega-3.”

The plaintiffs appealed after a judge in the U.S. District Court for the Eastern District of New York dismissed the case, concluding that the product labeling wasn’t misleading because fish oil is the common name for the Nature’s Bounty products.

In front of the Second Circuit panel, Nature’s Bounty’s lawyers argued that products have to be processed in the way that maximizes their health benefits.

“The product is processed in a way that maximizes the Omega-3 fatty acids, the part of the fish oil that provides the health benefits to the consumer and eliminates impurities like mercury, which is toxic to human beings,” said attorney William Delgado of DTO Law.

U.S. Circuit Judge Amalya L. Kearse, a Jimmy Carter appointee, took a philosophical approach to the arguments and pondered when processing a product changes it into a new product.

“At what point does something become something else?” Kearse asked.

Delgado pointed to the lower court’s decision in response to Kearse’s question, saying a reasonable consumer wouldn’t make any distinction between the various ways fish oil is processed.

“The reasonable consumer simply does not know enough about the fish oil processing world to have that understanding as the district court pointed out,” Delgado said.

Braun disagreed.

“Substantial transformation is not philosophical, with all due respect, Your Honor. It is very real,” he said. “Just like we have an apple: It’s not apple cider, it’s not apple vinegar, it’s not an apple extract and it’s not an apple oil.”

Judge Kearse was joined by U.S. Circuit Court Judges Alison J. Nathan, a Joe Biden appointee, and Guido Calabresi, a Bill Clinton appointee. Calabresi joined the proceeding over Zoom.

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