Ninth Circuit bars consumer claims challenging assertions of clinical proof

Kwan v. SanMedica Int’l, — F.3d –, No. 15-15496, 2017 WL
1416483 (9th Cir. Apr. 21, 2017)
Kwan alleged that SanMedica’s product SeroVital was falsely
advertised as effective, and the district court dismissed her complaint as a
lack of substantiation claim not actionable under California consumer protection
law. The court of appeals affirmed.
SanMedica advertised, inter alia, that its product had been
clinically tested and shown to produce a 682% increase in human growth hormone
(HGH), which had multiple physical and cosmetic benefits.  To proceed in a challenge to this claim, Kwan
would apparently need to allege “that one or more of the authorities alluded to
actually studied or tested the formula SeroVital contains and found that it
does not produce a 682% mean increase in HGH levels, or that Plaintiff herself
did not experience such an increase when using the product, or that a study
exists somewhere demonstrating that a 682% increase is categorically impossible
to achieve in an over-the-counter pill.” Instead, she only alleged that the study
relied upon to make the claim was “not an example of scientific evidence
recognized by experts, was never peer-reviewed, and was never published in a
peer-reviewed journal.”  So even if
affirmative statements about the existence of clinical tests proving
effectiveness are material to consumers, California law doesn’t allow
challenges to those statements merely because the consumer might be able to
show that the test didn’t demonstrate
the truth of the affirmative statement.
I think this is a mistake—with such evidence, the challenger
has shown that the statement about
clinical proof
is false, even if she hasn’t falsified another part of the
ad; the Lanham Act also doesn’t allow mere lack of substantiation claims, but
Lanham Act jurisprudence correctly recognizes that there can be separable
statements about the proof behind
another statement—and advertisers make those statements in order to convince
consumers that their statements are credible.

The court of appeals found that it wasn’t enough to allege that
the “clinically tested” representation and the health benefit claims falsely
implied that the marketing claims of SeroVital’s health benefits were
clinically proven by credible scientific proof. That was just a lack of
substantiation allegation, repackaged. 
The court rejected Kwan’s invocation of Lanham Act establishment claim
precedent because doing so “would clearly violate recognized California law on
the burden of proof placed on the plaintiff.” 
As readers are probably aware, the burden is also on the plaintiff to
show falsity under the Lanham Act; the Lanham Act precedent, however, makes
clear that statements or implications about proof can themselves be false.  Kwan wasn’t trying to shift the burden of
proof, as the court accused her of doing; she was challenging the truth of some
of SanMedica’s claims.

from Blogger

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