Plaintiff can’t win false advertising claim because there’s evidence on both sides

Korolshteyn v. Costco Wholesale Corp., No. 15-cv-709, 2017
WL 3622226 (S.D. Cal. Aug. 23, 2017)
Ugh. Costco’s TruNature Gingko labels represent that the
product “supports alertness & memory,” that “Gingko biloba can help with
mental clarity and memory,” and that “[i]t also helps maintain healthy blood
flow to the brain to assist mental clarity and memory, especially occasional
mild memory problems associated with aging.” Plaintiff alleged that these were
false or misleading under the UCL and CLRA. 
Relying on In re GNC Corp., 789 F.3d 505 (4th Cir. 2015), the court here
found that this was an impermissible lack-of-substantiation claim, and that
therefore a private plaintiff can never prove falsity “when a defendant offers
scientific evidence and admissible expert testimony supporting an advertising
claim about the efficacy of the product in question.”  To prove falsity, all reasonable experts in
the field must agree that the representations are false.  The court found that California would follow GNC, because no state court cases have
rejected it, but I doubt that given the state’s tradition of consumer
protection and its occasional rejection of the Lanham Act analogy ostensibly
underneath GNC (occasional because
there’s so much California consumer protection law that the analogy is only
rarely made).
Mullins v. Premier Nutrition Corp., 178 F.Supp. 3d 867 (N.D.
Cal. 2016), held that a plaintiff could prove claims “literally false if a
reasonable jury concludes that all reasonable scientists agree,” or that the
claims are “misleading by showing that the vast weight of the competent
evidence establishes that those health claims are false.” This is an attempt to
draw off some of GNC’s poison, but as
we will see it doesn’t work well.  The
main reasons that this formulation isn’t a good one are that (1) the Lanham
Act’s false/misleading distinction, from which GNC’s consumer protection law reasoning is supposedly drawn,
doesn’t have anything to do with “all reasonable scientists” v. “vast weight of
the competent evidence,” but rather with issues of consumer perception, and (2)
the way scientific evidence works doesn’t generally allow for such a
distinction; the most you can say about any given study is that, at various
levels of quality, it provides support for an affirmative claim or it doesn’t
provide support for that claim.  Mullins said that, for misleadingness, a
plaintiff “can 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 scientists.” But now we are firmly
detached from the idea of consumer perception, and the existence of poorly
designed or “incredible” studies shouldn’t be allowed to avoid a finding
literal falsity anyway!
It is one thing to say that “[i]nconclusive findings and
unsettled science are insufficient to meet Plaintiffs’ burden of raising a
question of fact on the issue of falsity,” and quite another to say, as if it
were a mere restatement, that “mixed evidence demonstrates at most that the
science on [the product’s] effectiveness is inconclusive.”  This is the fallacy of the excluded middle:
in the former situation, even crediting all the evidence, the plaintiff
couldn’t meet its burden of proof at trial on the merits; in the latter, it
might be the case that, depending on which evidence you credited, the plaintiff
could meet its burden.  This distinction
may seem fine, but it makes a big difference because it is about whether courts
will throw up their hands when truth is in question—the very essence of the
factfinding project. And that’s not hyperbole on my part, that’s from the
courts following GNC: “where there
are studies demonstrating both the effectiveness and ineffectiveness of the
Products, a reasonable jury could not find that the advertising claims are
false.”
So, the court here reasoned, “when a defendant presents
scientific studies supporting its advertising claim, a plaintiff must do more
than present its own studies that do not support the advertising claim, thereby
demonstrating that evidence is equivocal.” Mullins, with which the court here
disagreed, held that the plaintiff could offer “principled, supported
critiques” of the defendant’s studies, allowing the jury to disregard them or
to find the plaintiff’s studies more persuasive and thus find the advertising claims
misleading.
The court here also found that the plaintiff was only
alleging falsity, not misleadingness, because it thought misleadingness had
nothing to do with consumer perception. 
Though she used the words “false and misleading,” she was really arguing
that the claims were misleading because they were false.  Again, the court didn’t seem to understand
misleadingness as something that happened on the consumer end.  In fact, consumers might—and, we know from
other studies, in fact do—think that a claim on the label of a supplement has
substantial scientific weight behind it, including FDA approval; they are thus
misled, quite possibly materially, about the quality of the claim.
“Whether the Label Claims are true or false is a binary
choice—they are true, or they are false. When the scientific evidence is
equivocal, it is impossible to prove that an advertised claim is either
literally true or literally false.” 
Comment: This is (ironically?) at best misleading.  Not all cases in which there are factual
disputes—even cases where there is enough on both sides to get past summary
judgment—are “equivocal.”  Many of them
are merely contested, something that courts see easily enough in the ordinary
partisan context.  That doesn’t deprive
the factfinder of the ability to determine which is the truth, and if it can’t
do so, then the burden of proof does the necessary work.  GNC,
as I feared, has led to a series of false equivalences, with slippages in
meaning each time—from judge-made Lanham Act doctrine to consumer protection
law, from false to misleading, from “equivocal” to “equipoise.”
“Essentially, Plaintiff is arguing that the Label Claims
could be misleading because a jury could find that Defendants have not proven
them to be literally true, which is little more than a ‘lack of substantiation’
claim.” Comment: No, the jury could find that the statement “this product aids
memory” is false, because the plaintiffs’ evidence about the studies makes its
falsity more likely than not.  If a good
study would likely have shown an effect, and a good study exists that didn’t
show this effect, that tends to make it more likely that there is no
effect—indeed, that’s why you try to disprove a hypothesis.  “Literally false” and “lie” are not the same
thing (even if “literally false” was a part of consumer protection law).
“In sum, when a plaintiff presents admissible expert
testimony that scientific studies do not support an advertised claim, and a
defendant presents admissible expert testimony that scientific studies support
the advertised claim, the evidence is equivocal and all reasonable scientists
do not agree. No jury conclusion would change either of these facts.” Comment:
Note how misleadingness, in the ordinary sense of causing consumers to have
false beliefs regardless of literal truth, has become conceptually impossible
as well.  Under the court’s reasoning,
attempting to prove misleadingness would also cause the impermissible
“substantiation” problem—because the fact that a statement deceived consumers
about the level of proof would also not change the fact that there was
scientific evidence on both sides.
Missing from the court’s reasoning about substantiation is
the role of the burden of proof.  A
substantiation requirement means that the defendant has the burden of showing
that its claim is true.  A falsity or
misleadingness requirement means that the plaintiff has the opposite burden;
scientific studies showing no effect are one way of meeting that burden.  In fact, they are the best way to do so,
though whether they are sufficient in any given case may well be a matter for
the jury. 
I think the courts who follow GNC have been confused about the concept of “scientific study” and
its intersection with a very different mode of factfinding, the judicial trial.
Consider the following claim: X sold the most houses in the county last
year.  This might or might not be true; we
have various means of getting at the truth; we might even have conflicting
evidence (records, after all, may be imperfect; sometimes the best evidence
comes from fallible human memory, or human testimony that might require a
factfinder’s credibility evaluation). 
Could anyone seriously maintain that “X sold the most houses in the
county last year” cannot be false if the defendant possesses evidence
sufficient to avoid a verdict on summary judgment?  What’s so different about “science”? 
What the GNC line
of cases is really saying is that courts will not engage in the very process
they’re constituted to engage in if a consumer protection case requires a
factfinder, as the court makes clear when it says “under California law a
Plaintiff cannot maintain a false advertising claim when the defendant offers
admissible expert testimony and scientific evidence supporting the
advertisement in question.”  That is, the
court will only look at one side of the evidence; I would call that not very
judicious.  And by the way, this
formulation means that in fact there is a substantiation requirement under
California law—just one in which the quality of the substantiation is judged by
a minimal standard, that of admissibility. When a rationale for a rule makes
the rule a failure on its own terms, there is something deeply wrong.

Because there was competent evidence on both sides, the
defendant won on summary judgment.  If
you see something wrong with that previous sentence, then you see the problem
with GNC.

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