Best Nutritionals’ “Pure Antarctic Krill” supplement is not made with krill, rendering the company’s advertising claims false and the product “worthless,” a proposed class action alleges.
The 34-page lawsuit out of California asserts that lab analysis of the defendants’ krill supplement, which purportedly contains 1,000mg of krill oil as its source of omega-3 fatty acids, unequivocally shows that its contents are not what Best Nutritionals represents them to be. According to the suit, lab testing has revealed that the Best Nutritionals Krill-500, -1000 and -1250 supplements are “clearly adulterated” in that they do not contain phosphatidylcholine, a compound unique to the tiny, shrimp-like crustaceans that are abundant in the Antarctic Ocean. Per the suit, the krill supplement is also misbranded under the federal Food, Drug and Cosmetic Act and therefore unlawful to sell.
Among the 11 types of omega-3 fatty acids, the most beneficial to human physiology are alpha-linolenic acid (ALA), docosahexaenoic acid (DHA) and eicosapentaenoic acid (EPA), the case relays, with the latter two sourced primarily from marine oils from fatty fish and other seafood. Given that Americans generally do not consume a sufficient amount of EPA and DHA as part of their diets, supplementation is necessary, and the market for such is today valued in excess of $5 billion, the lawsuit says.
While both fish oil and krill oil contain omega-3s, the latter is generally more desirable and expensive in comparison. A key difference, for instance, is that krill oil not only comes with high EPA/DHA levels but is sourced from clean-water origins and offers antioxidant qualities, the lawsuit says. Moreover, a critical selling point for krill is that it’s better absorbed than fish oil, a claim Best Nutritionals displays prominently on product labels, according to the case.
As the lawsuit tells it, the popularity of krill has made it ripe for “unscrupulous manufacturers seeking to turn a profit at the expense of unwary consumers.” Per the case, the most common substitutes for krill are soybean oil and fish oil, which are used to mimic krill’s EPA and DHA levels, and thereafter astaxanthin is usually added to imitations to provide the capsules with the necessary coloring. Without scientific testing, a consumer would have no reasonable way to discover that a particular brand of krill oil was fake, the suit stresses.
According to the case, the adulteration of krill oil with, for instance, soybean oil will add phospholipid content but it will not become attached to the supplement’s omega-3 acids, properties displayed only by natural krill oil. Included in the complaint is a graph comparing the United States Pharmacopeia (USP) standard for krill oil and the “C-16” DHA standard with the defendant’s supplement. The suit contends that the graph “unequivocally” demonstrates that Best Nutritionals’ krill oil product “does not contain phosphatidylcholine, is therefore not authentic krill, and is clearly adulterated.”
In a footnote, the lawsuit states the C-16 DHA standard used by USP, a national authority on dietary supplement standards, identifies not only the existence of phospholipids but specifically the phosphatidylcholine unique to krill.
“Not only is the statement of identity and common or usual name of this Product not Krill Oil, its Supplement Facts, claiming the primary ingredient is krill is also false,” the suit further claims.
The lawsuit looks to represent all persons in the United States who bought Best Nutritionals’ krill oil supplement within the maximum allowable statute of limitations period, and New York- and California-specific “subclasses” of buyers.
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