Consumer Justice Center v. Olympian Labs, Inc.

I. Introduction

Consumer Justice Center, a nonprofit entity, has filed a complaint under the California’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.) against the makers and distributors of two over-the-counter dietary supplements. Consumer Justice seeks injunctions to remove the products from the market altogether, alternatively to change the advertising of the products, and to have all the profits made from the products disgorged.

One of the supplements is “Medi-Phen,” which is a combination of green tea extract, garcinia cambogia, ginger, mustard seed, cayenne, astragalus, white willow bark, uva ursi, Siberian ginseng, and gotu kola. Allegedly, Medi-Phen has been advertised as a “natural alternative for weight loss.” The other supplement is “Herp-Eeze,” which is made from the chaparral bush. Allegedly, Herp-Eeze has been advertised for “the relief of Herpes simplex viruses.” According to the complaint, neither product is safe, or effective for its advertised purpose.

The trial court ruled that federal law preempted the lawsuit, and so sustained a demurrer to the complaint without leave to amend. This appeal is limited to that single issue. We conclude…