Health Law Daily Wrap Up, ADVERTISING (FOOD, DRUG & MEDICAL DEVICES)—N.D. Cal.: Class action alleging Bausch & Lomb failed to warn consumers about excessive zinc in supplement tossed, (Jun 17, 2025)

By Donielle Tigay Stutland, J.D.

The plaintiff engaged in improper claim splitting because the putative class action was essentially duplicative of an earlier personal injury lawsuit she filed.

The federal district court for the Northern District of California dismissed a class action lawsuit brought by a consumer alleging that Bausch & Lomb, Inc.‘s PreserVision AREDS 2 supplement failed to warn users of the risk of excessive zinc intake. The consumer had previously filed an individual lawsuit against the supplement maker. In dismissing the suit, the court concluded that the two cases share a common nucleus of operative facts, despite the distinction between the claims and remedies pursued. The court granted Bausch & Lomb’s motion to dismiss the plaintiff’s claims with prejudice, and the class’s claims without prejudice to litigation by another putative class representative (Raskin v. Bausch & Lomb Inc. , No. 3:24-cv-06442-AMO (N.D. Cal. Jun. 12, 2025)).

Background. Bausch & Lomb is an eye health care company which “manufactured, distributed, and/or sold” PreserVision AREDS 2 (“PreserVision”), “a nutritional supplement intended to prevent and/or slow the progression of age-related macular degeneration.” PreserVision’s daily dose of 80 mg of zinc is over 700% of the recommended dietary allowance of eight (8) mg per day.

The named plaintiff is a consumer who began purchasing and taking PreserVision twice daily, seven days a week, as recommended by the label on its packaging. She did this for almost four years, until she was diagnosed with copper deficiency myelopathy. Her treating neurologist informed her that the cause of her copper deficiency myelopathy and all its associated symptoms was excess zinc consumption from the PreserVision supplement she took to prevent macular degeneration.

The consumer brought a putative class action, alleging a single cause of action for violation of California’s Unfair Competition Law (“UCL”). The consumer alleges that Bausch & Lomb’s marketing of PreserVision was both “unfair and unconscionable” and “fraudulent and deceptive” under the UCL, in that it “failed to disclose or warn that it posed significant risks of substantial physical injury resulting from the use of” PreserVision. Further, the consumer claims that without Bausch & Lomb’s “unfair and fraudulent conduct, she and other Class Members would not have purchased PreserVision or would have paid less for it.”

Prior to filing the class action, the consumer filed an individual action, in which she made the same claims as the claims at issue in this case – she alleges that Bausch & Lomb knowingly failed to warn her and other consumers of “any risks associated with excess zinc consumption,” and that she was injured as a result of that failure. The court previously found the putative class action related to the individual action and ordered it reassigned for joint consideration. Bausch & Lomb moved to dismiss the suit.

Claim splitting. The court began its analysis by reviewing Bausch & Lomb’s argument that the consumer cannot split her claims for relief across her individual action and this later-filed putative class action, as both of which are premised on Bausch & Lomb’s allegedly tortious conduct and the harm she suffered as a result of purchasing and taking PreserVision. The court highlighted the Ninth Circuit’s test for claim preclusion under Mendoza v. Amalgamated Transit Union Int’l: “[t]o determine when such improper claim-splitting is present, we borrow from the test for claim preclusion. Under the federal claim-preclusion principles that apply in these federal-question-based suits, the bar of claim-splitting is applicable if the second suit involves (1) the same causes of action as the first; and (2) the same parties or their privies.” The court also stressed, “To ascertain whether successive causes of action are the same” in the context of claim-splitting, courts “use the transaction test, developed in the context of claim preclusion.” Additionally, courts examine four criteria when applying the transaction test: “(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.”

Bausch & Lomb argued that the plaintiff has engaged in claim splitting because the putative class action is essentially duplicative of the personal injury lawsuit she filed earlier. The court noted that, “here, the two cases involve the same parties – the individual action includes an additional plaintiff, Raskin’s husband, as well as additional defendants, PreserVision retailers,” and this factor supported a finding of claim-splitting.

The plaintiff argued that she brought each suit under a different legal theory. However, the court noted that although the class action was brought under the UCL and the individual action was brought under theories of personal injury, “the suits share nearly identical factual allegations related to (1) the product at issue, (2) the risk it poses to consumers, and (3) Bausch & Lomb’s alleged disclosures or omissions related to its PreserVision products.”

The court concluded that the two cases thus share a common nucleus of operative facts, despite the distinction between the claims and remedies pursued. Moreover, the court stressed that these two cases raise indistinguishable medical and scientific questions, such as the appropriate measure of the risks likely to result from the recommended dosage of the supplement, meaning the evidence in both actions will be essentially the same.

The court granted Bausch & Lomb’s motion to dismiss the plaintiff’s claims with prejudice, and the class’s claims without prejudice to litigation by another putative class representative.

The Case is No. 3:24-cv-06442-AMO.

Judge: Olguín, A.

Attorneys: Anthony Lawrence Label (Veen Firm, PC) for Valerie Raskin. Eric M. Anielak (Shook, Hardy & Bacon L.L.P.) for Bausch & Lomb Inc.

Companies: Bausch & Lomb Inc.

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