CD Cal rejects In re GNC for all the right reasons

Zakaria v. Gerber Products Co., No. 15-cv-00200 (C.D. Cal.
July 14, 2015)
Zakaria sued Gerber, bringing the usual California claims, based
on Gerber’s alleged misrepresentations that Good Start Gentle infant formula
reduces the risk to infants of developing atopic dermatitis, a form of eczema,
and that the FDA endorsed these false health claims. The court denied Gerber’s
motion to dismiss, holding that Zakaria adequately alleged falsity, in part
based on Zakaria’s allegations about a study that concluded there was no
evidence that the consumption by an infant of partially hydrolyzed whey formula
(like Good Start Gentle) reduced the risk of allergic reactions, including
Gerber moved to reconsider based on In re GNC.  Here, the court
nails the problems with In re GNC,
which I hope will be corrected on rehearing. 
The Fourth Circuit held that, “so long as there is a ‘reasonable difference
of scientific opinion’ as to the merits of a manufacturer’s health claim, the
alleged actual falsehood of that health claim cannot be the basis for a cause
of action under several consumer protection laws, including the California UCL
and CLRA.”  The In re GNC complaint failed to
allege that no reasonable expert could support defendant’s statements, so it
was dismissed.
The court here began by noting that In re GNC contained “little analysis” of the relevant California
laws, relying instead on the Lanham Act. 
But Zakaria’s claims were based on California law.  There were no California cases consistent
with In re GNC.  California law bars representations that are
false or true but misleading.  The
complaint here met that standard as it has been interpreted by federal district
courts.  See, e.g., Hesano v. Iovate
Health Sciences, Inc., 2014 WL 197719, at *3 (S.D. Cal. Jan. 15, 2014) (actual
falsehood may be pleaded by “alleging studies showing that a defendant’s
statement is false”); Cardenas v. NBTY, Inc., 870 F. Supp. 2d 984, 995 (E.D.
Cal. 2012) (denying motion to dismiss based on “clinical cause and effect
studies [that] have found no causative link” between the supplement at issue
and the defendants’ health claim); Fraker v. Bayer Corp., 2009 WL 5865687, at
*8 (E.D. Cal. Oct. 6, 2009) (“To successfully allege a claim for false
advertising, Plaintiff has the burden to plead and prove facts that show that
the claims that Defendant made in connection with product are false or
misleading.”).  By contrast, the
California case cited by In re GNC
involved a complaint that didn’t
allege any scientific authority contradicting the defendant’s health claims.  Requiring some factual support for falsity
allegations isn’t the same as requiring a plaintiff to allege that all studies
and experts are in accord.
Second, “the falsehood alleged by Plaintiff is not that all
experts agree that Defendant’s product lacks a health benefit, but rather that
the product in fact lacks that benefit… If some reasonable experts incorrectly
had opined that Good Start Gentle had this health benefit, this would not
necessarily bar the claim.” Gerber’s knowledge could be at issue (for the
claims that require intent).  Also, inconclusive
scientific evidence may mean the plaintiff fails to carry her burden, since
mere lack of substantiation is insufficient for a private claim.  “However, these issues may not always be
resolved without the development of some factual record, which would preclude
their resolution on a motion to dismiss.” 
Third, Zakaria’s theories went beyond knowing falsity. She
also alleged that Gerber misstated the FDA’s support of the health claims of
Good Start Gentle.  Even In re GNC “left open the possibility
that a false advertising claim could be brought where a manufacturer made
representations that implied greater support for its health claims than were

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