The question of whether, and under what circumstances, a plaintiff can represent a class as to products he or she did not purchase, remains a vexing one for courts.  Judge St. Eve of the Northern District of Illinois recently weighed in on this issue.  In Wagner v. General Nutrition Corp., (No. 16-cv-10961, July 19, 2017), Judge St. Eve concluded that Plaintiff had adequately alleged standing for claims based on products that he had not purchased given that he alleged the products were materially the same.

Some courts have held that a plaintiff lacks standing to assert claims as to products that he or she did not purchase.  See, e.g., Allen v. Hylands, Inc., 2012 WL 1656750, at *5 (C.D. Cal.  2012) (plaintiffs lacked standing to assert claims about homeopathic products that plaintiffs have not purchased). Other courts employ a “substantially similar” test, under which standing exists if the products and alleged misrepresentations are substantially similar. Courts applying the  “substantially similar” test have mostly done so in cases asserting food-misbranding or mislabeling claims.  See, e.g., Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861 (N.D. Cal 2012) (compiling cases and finding products not substantially similar).

In Mednick v. Precor, Inc., 2014 WL 6474915 (N.D. Ill. Nov. 13, 2014), for example, the court explained that the majority of courts that have considered the issue “hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” Id. at *3 (citing Quinn. v. Walgreen Co., 958 F. Supp. 2d 533, 541 (S.D.N.Y. 2013)).

In Wagner, Plaintiff claimed that he purchased and consumed a glutamine supplement “because [he] believed, based upon the misleading labels, that they enhanced muscle growth, provided faster recovery, and had anti-catabolic properties.”  The Defendant, a retailer of dietary supplements, markets at least four glutamine supplements.  The Defendant argued that, because the Plaintiff purchased only one of these four supplements, he lacked standing to assert claims on behalf of putative class members who purchased the remaining three supplements.  In denying the Defendant’s motion to dismiss, the Court noted that the products have the same key ingredient of glutamine and Plaintiff alleged that all of the products contain misrepresentations for the same reason: “glutamine supplements do not have the benefits indicated on the products’ labels.”  According to the Court: “nothing in the complaint or the parties’ briefs suggest that any differences in the product are material.”  Accordingly, the Court concluded that the case was similar to Mednick in that Plaintiff’s claims target a siyengle aspect present in an array of different products.