Agency Action on Omega 3 Followed by Litigation Against Gummy Fish Maker

A putative class action has been filed in a Washington state court by plaintiffs claiming that L’il Critters Omega-3 Gummy Fish® are deceptively marketed as products that will “Promote Healthy Brain Function” in children. Aust v. NW Natural Prods., Inc., No. 10-07949 (Wash. Super. Ct., King Cty., filed February 23, 2010). In fall 2009, the Federal Trade Commission (FTC) warned the defendant that its claims may violate federal false advertising laws, and the company modified its marketing materials. Additional information about the FTC’s actions on products with omega-3 related claims appears in issue 338 of this Update.

Seeking to represent a class of all Washington residents who have purchased the company’s omega-3 gummy fish products, the plaintiffs allege violations of Washington’s consumer protection act, breach of warranties, conversion and unjust enrichment. They seek a class certification order, a declaration that the company’s conduct was unlawful, actual damages, statutory damages including treble damages, punitive damages, attorney’s fees, and costs.