Attorney: Victory for defendant in HGH class action 'bucks a national trend'

By Corinne Lincoln-Pinheiro | May 18, 2017

SAN FRANCISCO (Legal Newsline) – A California woman who appealed dismissal of her class action lawsuit alleging false advertising of human growth hormone (HGH) supplements saw the decision upheld recently.  

On April 21, the U.S. Court of Appeals ruled against Serena Kwan in her lawsuit against SanMedica International, along with a matching opinion in a similar case. The ruling goes against a recent string of court decisions, attorney J.Clark Baird says.

“This ruling bucks a national trend that’s been going on in the dietary industry,” Attorney J. Clark Baird of The Law Office of J. Clark Baird told Legal Newsline. 

“It’s this notion that a plaintiff can make a bare-bones complaint without any actual proof, even though she had standing, (it was) whether or not she had standing to sue. Even with an amended claim, the case was dismissed. It’s just a simple legal issue in terms of writing a sufficient complaint. 

"You have to allege an injury that has a legal remedy.”

In 2014, Kwan filed a class action against manufacturer SanMedica International LLC alleging false advertising of SeroVital, a product that claims to increase HGH levels, resulting in various health benefits. 

Kwan alleged SanMedica’s claims were not supported by scientific studies and, “would not be accepted by any credible, peer-reviewed scientific journal.” The trial court said she didn’t prove her claim or that she used the product, only that she purchased the product. Upon appeal, the case was dismissed with prejudice. 

Baird, a steroid law and sports supplement industry attorney who has represented clients across the U.S., said companies are also suing competitors for false and misleading claims. He said it’s ludicrous that class actions are based on consumers who don’t suffer any physical or medical harm.

“Maybe if (Kwan) had either peer reviewed studies of the products that disputed the claim, or a medical expert or an affidavit to attach to the complaint to show that the product was not capable of producing the results that the label claimed, that definitely could have helped but they failed," Baird said.

Baird said warning letters from the Food and Drug Administration to different dietary supplement manufacturers making similar claims, especially about HGH production, are not uncommon anymore.

“Some of the claims as to what HGH does to the body are legitimate,” he said. “That it reduces body fat or adds lean muscle tissue, those are generally accurate, but the claim that (SeroVital) had a 682 percent (mean) increase is a pretty huge jump in the body’s production of HGH.”

Baird questioned what SanMedica’s test sample looked like. 

“For (such) an increase, what was the baseline of HGH levels that they began with to get that number?” he said.

He said scientific peer review research of HGH are done with children and adults with specific medical issues, but that it is a drug prescribed in limit set of circumstances and that is completely different from HGH as dietary supplements.

They are not drugs under the Food, Drug and Cosmetic Act, he said, “and dietary supplement manufacturers are not supposed to make drug-like claims on their labels and advertising even though they (include disclaimers). Products might be effective but what effective means is a subjective term.”

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