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March 2015

James Scadden Quoted in Article on Erroneous Testing of Herbal Supplements

San Francisco partner James Scadden was interviewed and quoted in an article on titled “‘Dream Scenario:’ Herbal Supplements Sitting Pretty After AG’s Blunder.” 

The article discusses how a report by the New York State Attorney General’s office condemning the supplements industry – particularly products sold by GNC – as not containing the herbal substances as labeled, was highly flawed.  Following the report, GNC’s stock declined 5% following the cease-and-desist letter that was sent to them as well as other retailers including Target, Walgreens, and Walmart.  That action was based on DNA test findings that only 21% of samples actually contained the plants or herbs advertised.  Members of the plaintiffs’ bar have initiated lawsuits based upon the alleged mislabeling.

However, it has since become apparent that the research methods used in the study were both unreliable and misleading.  In the process of making supplements, DNA is necessarily eliminated or denatured during the extraction and purification process.  Had significant DNA indicators been found, it would have meant the products were poorly made – the New York AG got it backwards, and wrong.

In commenting on the story, Scadden said, “The fact that third-party experts typically critical of the industry have now challenged the methodology used by the New York State Attorney General is a dream scenario for any attorney representing a company responding to a lawsuit.  The common attack on expert defense testimony is to question the impartiality of the expert and to assert that the expert is somehow beholden to the defendant that hired them.  But when those same experts have acted in the past as critics of companies in the same industry, it allows for unassailable arguments about that expert’s impartiality and credibility.  Lawyers defending companies in the supplement industry will now happily point to the work of past critics of the industry to defend cases,” he concluded.

The AG’s misguided report came under fire from third-party experts who are critics of the supplement industry.  While they lobby for the public to be better informed as to the possible hazards of herbal supplements, they recognize that unsupportable investigations are a disservice to that purpose. 

The complete article can be read by clicking here.

James G. Scadden