Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Ill.: Motion to dismiss in NOW Foods magnesium supplement mislabeling case denied, (Mar 16, 2026)

By Wendy Biddle, J.D.

Plaintiffs sufficiently alleged fraudulent concealment, breach of warranty, and consumer protection violations in the class action.

A federal judge in the Northern District of Illinois has denied NOW Health Group, Inc.'s motion to dismiss a class action lawsuit alleging the company mislabeled its magnesium citrate supplement by failing to disclose the presence of magnesium oxide, a cheaper and less bioavailable form of the mineral. The court ruled that plaintiffs Phillip Stonehart and Moussa Kouyate adequately stated claims for fraudulent concealment, unjust enrichment, violations of New York's General Business Law, and breach of express and implied warranties under New York and Utah law (Stonehart v. Now Health Group, Inc., No. 1:24-cv-04436 (N.D. Ill. Mar. 9, 2026)).

Background. NOW Foods, headquartered in Bloomingdale, Illinois, markets and sells vitamin supplements throughout the United States, including a magnesium supplement. The product's label states it contains 400 milligrams of elemental magnesium per serving, derived from a 2,018 milligram complex of magnesium citrate, magnesium glycinate, and magnesium malate.

Plaintiffs Stonehart and Kouyate, residents of Utah and New York respectively, purchased the supplement based on these label representations. They allege that consumers specifically prize magnesium in the citrate, glycinate, and malate forms because these sources are more bioavailable than other forms, meaning the magnesium they contain is more easily and completely absorbed by the body.

The plaintiffs contend it is chemically impossible for a three-capsule serving of NOW's supplement to contain 2,018 milligrams of elemental magnesium from only the three advertised sources. Based on each component's magnesium content, they argue the supplement must contain either less than 400 milligrams of magnesium per serving or a cheaper buffer form like magnesium oxide, which has a higher percentage of elemental magnesium but is less bioavailable.

After the plaintiffs filed suit, NOW changed the supplement's label to disclose that the magnesium is derived from magnesium citrate, glycinate, malate, and magnesium oxide. The plaintiffs allege that NOW knew the supplement did not contain 2,018 milligrams of elemental magnesium per serving derived solely from the three originally listed sources, pointing to the company's rigorous testing of raw materials and finished products with in-house laboratories.

NOW Foods filed a motion to dismiss.

Fraudulent concealment claims. The court first addressed NOW's argument that plaintiffs failed to state a fraudulent concealment claim, rejecting the company's contention that no duty to disclose existed. The court found that plaintiffs adequately alleged NOW had superior knowledge about the supplement's composition. The court noted it is plausible that the contents of the supplement were peculiarly within the manufacturer's knowledge, especially given NOW's extensive testing at several stages of product development. The court further reasoned that where the defendant expressly advertised superior bioavailability, neither reasonable care nor ordinary intelligence would require plaintiffs to perform chemical calculations to detect the presence of a less bioavailable buffer, even if such information was publicly available.

The court also concluded that plaintiffs adequately alleged NOW had a duty to disclose to prevent a partial or ambiguous statement from being misleading. The court noted that publicly available information about various forms of magnesium does not negate this duty, stating that the defendant essentially conceded its label contains only part of the truth since consumers would need to conduct their own research to calculate the presence of magnesium oxide.

On materiality and detrimental reliance, the court found plaintiffs' allegations sufficient. The plaintiffs stated that had they known the true composition of the supplement, they would not have purchased it or would have only paid for the magnesium from the advertised sources actually delivered.

Regarding intent to deceive, the court rejected NOW's argument that plaintiffs included only conclusory allegations. The court found that plaintiffs alleged when, where, and how the defendant obtained knowledge that the supplement contained magnesium oxide, pointing to NOW's industry-leading testing facilities and the label change after litigation commenced.

Consumer protection and warranty claims. The court also denied NOW's motion to dismiss the New York General Business Law claim. The court found plaintiffs plausibly alleged that defendant's conduct was likely to mislead a reasonable consumer acting reasonably under the circumstances. The court emphasized that reasonable consumers rely on supplement labels to accurately determine the identity, amount, and source of dietary ingredients, and that typical consumers are unaware of the elemental magnesium content in different sources. The court noted that courts have recognized it is materially misleading to suggest a product contains a greater proportion of a preferred ingredient than it actually does, even where there is a visible ingredients list stating the correct composition.

On the breach of express warranty claims under New York and Utah law, the court found that product labels can create express warranties and that no particular words are required to constitute such a warranty. The court concluded that plaintiffs adequately alleged defendant's label suggests the supplement contains a greater proportion of preferred sources of magnesium than it actually does.

For the Utah implied warranty of merchantability claim, the court rejected NOW's privity argument, finding that Utah law creates a third-party beneficiary exception to the privity requirement for breach of implied warranty claims. As the court explained, "it would be unjust to recognize a rule that would permit manufacturers of goods to represent that goods possess qualities they do not possess, and then deny the customer to recover damages because there is no privity of contract."

Remaining claims. The court permitted plaintiffs' unjust enrichment claim to proceed, noting that under federal pleading standards, plaintiffs may plead claims in the alternative even if based on the same underlying conduct. The court clarified that the fact plaintiffs' other claims might provide an adequate remedy does not foreclose success of their unjust enrichment claim under New York or Utah law.

On whether Utah class claims could proceed, the court declined to decide at the motion to dismiss stage whether the Utah Consumer Sales Practices Act limits the relief sought, following other courts in deeming the issue better suited for disposition later in the litigation.

Finally, the court rejected NOW's argument that the injunctive relief claim is moot due to the label change. The court found it plausible that plaintiffs may be able to offer facts showing defendant's new label is not accurate, keeping the issue for which plaintiffs seek injunctive relief alive.

The Case is No. 1:24-cv-04436.

Judge: Cummings, J.

Attorneys: Sergei Lemberg (Lemberg Law, LLC) for Phillip Stonehart. Robert David Donoghue (Holland & Knight LLP) for Now Health Group, Inc.

Companies: Now Health Group, Inc.

Cases: Advertising StateUnfairTradePractices IllinoisNews