Courthouse News Service

SAN DIEGO (CN) – A $5 million class action disputes the link Dean Foods has tried to fasten between Horizon organic DHA-fortified milk and purported improvement to “brain health” in adults and children. The consumer complaint says that Dean and its subsidiary, Whitewave Foods, sell a line of four Horizon organic milk products with DHA Omega-3, a “highly processed fermented algae.”

According to the federal complaint filed in San Diego, Dean and Whitewave make “false, misleading and deceptive” brain-health representations in print, radio and TV ads, and on the labels of milk cartons.

“Front and center and prominently featured by itself in a white banner running across the front of each and every milk carton, defendants state ‘DHA Omega-3 Supports Brain Health,'” the complaint says. “The brain health representation also prominently appears on the top, the back and the left side panel of every milk carton.”

“However, the DHA-fortified milk products do not support brain health in children or adults,” lead plaintiff Evereth Barrera claims. “Defendants also do not have competent and reliable scientific evidence to support their brain health representation. Clinical cause and effect studies have found no causative link between DHA algal oil supplementation and brain health.”

Barrera, a resident of El Centro, Calif., says he purchased Horizon Reduced Fat Milk Plus DHA Omega-3 every week for roughly two months.

Whitewave Foods spokeswoman Sara Loveday said the suit was “without merit.”

“Horizon does not discuss details of pending litigation,” she told Courthouse News. “However, we plan to vigorously defend ourselves against the allegations about the labeling and marketing of our Horizon’s DHA Omega-3 enhanced milk products.”

The suit says Horizon milk lines the shelves of “virtually every major food, drug and mass retail outlet in the country,” and that consumers like Barrera pay a “premium” price of between $5 to $6 for a one-half gallon of the milk.

But, according to the lawsuit, the DHA-fortified Horizon products, which include whole, reduced-fat, fat-free and chocolate milk, do not “perform as advertised.”

“DHA is a long-chain omega-3 fatty acid typically found in cold water fish,” according to the complaint. “The DHA in defendants’ milk products is not derived from fish oil. Instead, the DHA oil found in defendants’ milk is an immature short-chain omega-3 fatty acid made from an extract of mutated and fermented algae. An 8 oz. serving of the DHA-fortified milk products contain approximately 32 mg of DHA algal oil. Contrary to defendants’ representations made on each and every milk carton, DHA algal oil does not support brain health, especially in the relatively small amount found in a serving of defendants’ products.”

The class seeks damages for violations of the unfair competition law, The Consumers Legal Remedies Act and breach of express warranty. It is represented by Phoenix-based attorney Patricia Syverson with Bonnett, Fairbourn, Friedman & Balint, who declined to comment.

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