Zero Impact Bar Class Action Lawsuit to Remain in Federal Court

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Zero Impact Bar Class Action Lawsuit to Remain in Federal Court

By Anne Bucher

On Tuesday, July 2, the Ninth Circuit Court of Appeals ruled that a class action lawsuit accusing the maker of Zero Impact protein bars of understating the product’s effect on blood sugar will remain in federal court.

The three-judge panel overturned a federal judge’s decision to send the Zero Impact class action lawsuit back to Los Angeles Superior Court.

Plaintiff Gabe Watkins initially filed the class action lawsuit in the Los Angeles Superior Court. In his complaint, Watkins alleged that Vital Pharmaceuticals distributed Zero Impact protein bars that were inaccurately marketed as having little impact on blood sugar. He filed his complaint on behalf of a class of “thousands of consumers throughout the United States.” He claims that the total damages sustained by the class are “likely in the millions of dollars.”

Watkins repeatedly purchased the Zero Impact bars from various stores in Sherman Oaks because of the “Zero Impact” labeling. The Zero Impact label claims that “Every effort has been made to make sure that the sugars contained in this bar have a minimal impact on blood sugar and insulin.”

Watkins alleges in the Zero Impact bar class action lawsuit that these claims understate the product’s effect on blood sugar. He claims that the Zero Impact bars have been mislabeled because, despite the promotional materials asserting otherwise, they “actually contained large amounts of undisclosed sugars and carbohydrates, making them have a substantial impact on blood sugar and insulin.” Watkins accuses Vital Pharmaceuticals of engaging in unfair competitions, deceptive practices, unjust enrichment and breach of contract.

In its request to remove the class action lawsuit to federal court, Vital Pharmaceuticals argued that the amount in controversy exceeded $5 million, a requirement for federal jurisdiction under the Class Action Fairness Act (CAFA). To support this claim, the company’s attorney submitted a declaration to assert with “legal certainty” that the amount in controversy exceeded $5 million. Richard Cimino, the controller at Vital Pharmaceuticals, also submitted a declaration that nationwide sales of the Zero Impact protein bars exceeded $5 million.

While the district court found that the declarations were vague, the Ninth Circuit found that the controller’s declaration “was sufficient to establish that CAFA’s $5 million amount in controversy requirement is met in this case.” The court reversed and remanded the class action lawsuit, instructing the district court to exercise jurisdiction over the case.

Judge Raymond Fisher dissented in part to say: “I do not believe that the declaration is sufficient as a matter of law to establish that Vital met its burden of proving the amount in controversy by a preponderance of the evidence.”

The Zero Impact Protein Bar Class Action Lawsuit case is Gabe Watkins v. Vital Pharmaceuticals, Inc., Case No. 12-cv-09374-SJO-JC, in the Ninth Circuit Court of Appeals.

UPDATE: A federal judge dismissed the Zero Impact Bar Class Action Lawsuit, ruling that the claims are better suited for review by the U.S. Food and Drug Administration.

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