Cal. court sensibly rejects Fourth Circuit’s GNC rule on consumer protection claims

Mullins v. Premier Nutrition Corp., 2016 WL 1534784, No. 13-cv-01271
(N.D. Cal. Apr. 15, 2016)

This case revisits an issue with which courts have struggled: when consumer
plaintiffs plead that a product advertised as clinically proven isn’t, is that
a mere “lack of substantiation” claim unavailable to private parties?  I think the answer is no—plaintiffs are
pleading that they can show that a specific claim made by the defendant is
false—and so does the court here.  Along
the way, the court also deals with the hot mess that is the Fourth Circuit’s In re GNC holding, drawing its teeth in
a way that should benefit future California plaintiffs, at least.


Plaintiff Kathie Sonner (a replacement plaintiff) argued
that Premier sold “what amounts to worthless snake oil”: Joint Juice, a liquid
dietary supplement containing glucosamine and chondroitin.  The ads claim that the product will “help keep
joints flexible and lubricated.” The bottles used the slogan, “A bottle a day
keeps your joints in play,” and also used the logo and contact information of
the Arthritis Foundation.


Example of happy joints ad

Joe Montana endorsement

Premier chose to target consumers who suffered from joint
pain and arthritis.  Its ads suggested
pain relief by showing exclamations of joy by people performing ordinary activities
that can be painful for people with joint pain. 
Premier bid on AdWords for, among others, “arthritis treatments,” “how
to stop arthritis,” “supplement for arthritis,” and “arthritis cures,” and
bought ad space in Arthritis Today, the Arthritis Foundation’s magazine. Premier
research and internal customer data generally shows that more than 90% of Joint
Juice users suffer joint pain and are interested in pain relief.


By contrast, Premier had Hal Poret conduct a survey for this
litigation, demonstrating why litigation surveys are not particularly
reliable.  200 respondents had bought
Joint Juice before, and 200 had purchased a product containing glucosamine, but
not Joint Juice. The survey began with an open-ended question: “[T]ell us why
you decided to purchase Joint Juice,” with spaces for up to twenty possible
responses and an “I don’t know” option.


Then Poret asked respondents to select from a list of
choices the “reasons or factors that influenced your decision to purchase Joint
Juice” (or the other product).  Choices
included: “I had generally heard about or read about the benefits of glucosamine”;
“Statements or information I read on the Joint Juice bottle or packaging”; “The
product is vegetarian” ‘ “Price/less expensive”; “Liked the taste”; “Endorsed
by Joe Montana”; “Orange packaging[.]” 
There were two false “control choices” (1) “Statements or information I
read/heard in promotions on a home shopping channel or website, such as HSN or
QVC”; and (2) “Endorsed on the Dr. Oz show or website.”  (Note that “source” statements like this are
incredibly unreliable, because people’s memory for source is much weaker than
their memory for content.  Getting these
“wrong” wouldn’t serve as a good control for beliefs about product


You may notice that Poret didn’t ask whether consumers
believed that Joint Juice would relieve pain or other arthritis symptoms.  Instead, he asked respondents who referred to
the packaging to identify the specific statements that made an impression.  He concluded that consumers purchase Joint
Juice for myriad reasons, and only 5.5% chose to buy the product because of the
statements on the label. Poret concluded that “roughly 75% of respondents
answered that they were not influenced by statements on the package and roughly
75% answered that they were not influenced by statements in advertising.”
Instead, recommendations from friends and family members had primary
weight.  Which of course explains the
detailed marketing studies Premier commissioned about how to target its


Sonner’s expert disagreed, concluding that, despite serious
design flaws and coding errors, the survey confirmed that most Joint Juice
users bought with the hope that it will provide joint health benefits or
relieve joint pain. As an example of a coding problem, Poret did not treat as
motivated by joint health concerns those who tried the product to see if “it
would work.” Sonner’s expert’s coding indicated that 91% of those surveyed
identified joint health and pain concerns influenced the decision to buy Joint
Juice.  The expert also noted that many
of the offered reasons didn’t mention joint pain or health, but instead were
reasons why the consumer might choose one glucosamine product over another, and
thus were poor options.


Sonner alleged that, in fact, glucosamine and chondroitin do
not and cannot palliate arthritic joints or improve the function of healthy
joints, and brought the usual California claims.  An invalid substantiation-based claim demands
that a defendant either “put up or shut up.”  By contrast, Sonner submitted evidence
directly supporting her claims of falsity and misleadingness, including a lot
of double-blinded studies, clinical protocols, and meta-analyses, as well as three
experts, including one who testified about a medical consensus against the joint
claims. This evidence raised triable issues of fact. Premier had evidence
suggesting that the research was equivocal, but Sonner offered “principled”
critiques of each submitted study favoring Premier.  “If a jury agrees with those criticisms, then
it may also logically decide that it is misleading to claim Joint Juice can
provide benefit in the face of substantial evidence to the contrary.”


Sonner alleged both falsity and misleadingness.  As to falsity, she argued that the glucosamine
and chondroitin in Joint Juice were not bioavailable in sufficiently high
quantities to produce any positive effect, meaning the express messages—that
Joint Juice would help keep joints flexible and lubricated—were false or
misleading. In addition, she argued that the packaging and ads falsely implied that
Joint Juice could relieve joint pain and stiffness in arthritic joints.  Premier argued that its ads made only general
health benefits and that the disclaimer on the back of the package would
disabuse users of any notion that Joint Juice treats or provides relief for arthritis.
Premier further challenged Sonner’s ability to prove the existence of any
implied message in the absence of a consumer survey.


To prevail, Sonner needed to show that “a significant
portion of the consuming public or of targeted consumers acting reasonably
under the circumstances, could be misled” by the statements on Joint Juice
packages.  While Lanham Act cases require
survey evidence for implied falsity claims, California courts have expressly
rejected the “view that a plaintiff must produce a consumer survey or similar extrinsic
evidence to prevail on a claim that the public is likely to be misled by a
representation.”  Sonner offered three
types of evidence: the ads themselves, her experiences, and Premier’s marketing
research surveys.


The court thought that this was sufficient to create a
factual issue:


The name alone implies that the
whole point to drinking the product is to receive joint health benefits. Sonner
testified that she believed Joint Juice, like ibuprofen, would provide pain
relief. While an isolated anecdotal incident is likely insufficient to show
that the reasonable consumer understands this implied pain message, Sonner’s
account is some evidence of Premier’s unspoken message.


Further, Premier’s own research showed that its customers “cited
joint pain as the principal reason they tried and continued to use Joint Juice,”
which could persuade a reasonable jury that Premier’s ads “subliminally
encouraged people to buy the product to relieve joint pain.”  Sonner didn’t need her own survey when
sufficient evidence could be found in Premier’s own files.


The disclaimer on the back wasn’t sufficient to prevent
misleadingness.  The Gerber case rejected the assertion that “reasonable consumers
should be expected to look beyond misleading representations on the front of
the box to discover the truth from the ingredient list in small print on the
side of the box.”  In the 9th
Circuit, “courts cannot hold as a matter of law that disclaimers vitiate claims
for misleading representations.”  The
jury should review the package as a whole, especially given the evidence in the
record that the disclaimer didn’t change consumers’ views about the use of
Joint Juice for treating joint pain and stiffness.


Premier argued that all Sonner had was a battle of the
experts, and therefore she had to lose because UCL and CLRA claims fail if the
plaintiffs do not aver “that all scientists
agree that glucosamine and chondroitin are ineffective at providing the
promised joint health benefits.” In re GNC Corp., 789 F.3d 505, 515 (4th Cir.
2015) (emphasis in original).  In re GNC reasoned that, even if “the
vast weight of competent clinical evidence” cuts against a purported health
claim, the UCL claim for literal falsity failed as long as “a reasonable
difference of scientific opinion exists.”


The court had noted above that California doesn’t use the
explicit/implicit divide when it discussed surveys; starting with the GNC court’s error in understanding the
Lanham Act standard (explicit means stated outright; it’s not a standard
looking to the quantum of evidence proving the falsity), that decision is rotten
all the way down.  Speaking with great
restraint, the court here commented that “[t]here is cause to believe the
Fourth Circuit’s characterization of California law is flawed.”  In re
didn’t analyze California law to predict what the California Supreme
Court would do, “as district courts in this circuit must.”  Instead, it used Lanham Act precedent, which
doesn’t apply. 


Moreover, the court continued, In re GNC only addressed whether a plaintiff could allege literal
falsity, not whether it could use evidence of a solid scientific consensus to
prove that a claim was misleading.  Given the intentional breadth of California
consumer protection law, and its recognition that even technically accurate
claims may mislead or deceive, “a manufacturer may not hold out the opinion of
a minority of scientists as if it reflected broad scientific consensus.” Thus, “even
if a reasonable expert testifies that the scientific literature is equivocal, a
plaintiff may prevail under the UCL and CLRA if she proves that the expert is
nevertheless incorrect.”


Sonner could therefore win in two ways.  She could prove literal falsity “if a
reasonable jury concludes all reasonable scientists agree that drinking
glucosamine and chondroitin do not relieve joint pain or stiffness associated
with [arthritis] and that Joint Juice does not provide any general joint health
benefits.”  She could do this by showing
that Premier’s expert’s opinions were unreasonable.  (It is silly to call this literal falsity and
not the next path also literal falsity, but at least the court gets everything
else right.)  Or, she could show that “the
vast weight of the competent evidence establishes that those health claims are
false.” This second theory would allow her to “concede the existence of
scientific studies substantiating a representation, but argue that those
studies are poorly designed, incredible, or represent the view of a minority of


There was a genuine dispute both about whether Premier’s
expert’s opinions were reasonable in light of the scientific evidence and
whether “the totality of the evidence” supports the conclusion that Joint Juice
does not relieve joint pain or stiffness in arthritic joints or improve joint
health, in general.  (Note the move,
correct in my opinion, from “vast weight” to “totality of the evidence”—the standard
is usually proof by a preponderance of the evidence, and there is no reason to
depart from that here.)


Furthermore, even if a jury found that Premier didn’t make
any implied claims directed at arthritis sufferers, there was sufficient
evidence that the amount of glucosamine and chondroitin in Joint Juice could
have no positive impact on general joint health.


Premier argued that, because Joint Juice is a supplement,
not a drug, studies proving that it didn’t work were irrelevant, because the
FDCA allows supplements to be sold even without randomized, placebo-controlled,
double-blind clinical trials supporting their efficacy.  Um, no. 
“That the FTC permits supplement manufacturers to make claims
unsupported by randomized clinical trials is not a reason to reject the use of
such studies to prove supplement claims are false or misleading.”


Remedy: The UCL allows restitution, while the CLRA allows restitution,
actual damages, punitive damages, and “[a]ny other relief that the court deems
proper.”  Sonner sought a full refund,
and the court agreed that this could be appropriate if the product was shown to
have no value.  In other cases rejecting the full refund
model, consumers received a product with other benefits aside from the
allegedly false claim.  But Sonner
claimed that she and other Joint Juice consumers wouldn’t have bought it absent
its joint-related claims—that it was nothing more than a liquid pill.  “Unlike juice, which consumers purchase for
hydration, or cigarettes, which smokers purchase for flavor and to assuage
nicotine cravings, Joint Juice is for all intents and purposes a liquid pill.”  Premier even stated that the only reason to
buy Joint Joice was “the medicinal value of the glucosamine and chondroitin it
contains.”  Given the evidence of why
consumers bought Joint Juice, there was at least enough evidence to survive
summary judgment as to full-value restitution.


The court did refuse to exclude Hal Poret’s testimony and
survey. Poret never asked consumers whether they purchased Joint Juice because
of its purported joint health benefits or how they understood the messages on
Joint Juice labels and ads.  “[A]s long
as [the survey] is conducted according to accepted principles and is relevant,”
the “technical inadequacies in a survey, including the format of the questions
or the manner in which it was taken, bear on the weight of the evidence, not
its admissibility.”  The court found that
the survey questions “cre[pt]  close to
the general rule’s outer boundaries,” but didn’t cross them.  Sonner could address the coding and the
questions on cross-examination. Indeed, her expert’s recoding offered opinions
favorable to Sonner’s claims based on these data—“a fact that undermines her
contention that the survey is unreliable, irrelevant, or unduly prejudicial.”


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