Court Accepts NPA’s Motion for Leave to Appear Amicus Curiae in Bayer Case

U.S. District Court of New Jersey rejects DOJ’s request to prevent association from filing brief

The Natural Products Association (NPA) has been granted Leave to Appear Amicus Curiae by the U.S. District Court of New Jersey in United States of America v. Bayer Corporation. This news comes shortly after the Department of Justice (DOJ) responded to NPA by requesting the court not accept the amicus brief.

In a Sept. 12 filing, the government claimed Bayer violated an earlier 2007 consent agreement surrounding the claim that its One-A-Day WeightSmart supplement would increase metabolism, though the type of claims made by the Phillips’ Colon Health product sufficiently cover the structure/function claims permitted by the Structure/Function Final Rule for dietary supplements.

The Government Opposition to NPA’s Motion for Leave response asserted that it is not “about a change to a legal standard or an attempt by the government to re-make the dietary supplement industry” and only concerns the Defendant Bayer Corporation’s claims with its Phillips’ Colon Health product. However, as NPA pointed out in the “friend of the court” or amicus brief, action against Bayer for this issue would set a precedent for the industry to comply with rigorous drug-level standards that are contrary to the Dietary Supplement Health and Education Act (DSHEA) and lack relevance for dietary supplements as they do not claim to be a drug.

The response also postulated that NPA’s participation in this case would be “unlikely to provide any assistance to this Court, for four reasons: (1) NPA is too partial to a particular outcome in this matter to add anything meaningful; (2) NPA’s claimed interests are already well represented by Bayer; (3) NPA misstates what this case is about and raises arguments not made by the parties; and (4) NPA does not and cannot seek to assist this Court on the precise question before it.”

Given the government’s motion to dismiss NPA’s amicus brief, the association is very pleased with the court’s acceptance of the brief, as it is very important that our arguments will be considered in the matter as germane.

NPA will continue to inform our members on this important case and others like it.