court requires survey evidence in consumer protection case, importing Lanham Act doctrine

Hughes v. Ester C Company, — F.Supp.3d —-, 2018 WL
4210139, No. 12-CV-0041 (E.D.N.Y. Sept. 4, 2018)
Ester-C dietary supplements contain a patented form of
vitamin C in the form of calcium ascorbate. Plaintiffs alleged that the advertising
for the supplements misleadingly represented that this provides a form of
immune system defense that protects users from illnesses, and decreases one’s
likelihood of getting or remaining ill. 
They brought standard consumer protection claims, including under
California law.
The court granted summary judgment because plaintiffs
provided no extrinsic evidence of how consumers actually interpret Ester-C’s
“immune support” representation in isolation, and also no evidence of actual
falsity in terms of “the immune benefits of vitamin C or lack thereof, the
ability or inability of vitamin C to treat or prevent the common cold or
influenza virus, or the relative bioavailability or absorbability of Ester-C
and other forms of vitamin C.”  Without
an expert, their cited evidence about vitamin C was just hearsay.
That could have been enough to get rid of the case, but the
court also found that the plaintiffs couldn’t prove that consumers received the
allegedly misleading messages.  In
another example of Lanham Act doctrines creeping into state consumer protection
doctrine, the court found that the reasonable consumer standard of state
consumer protection laws required plaintiffs to prove that the alleged claims “were,
in fact, conveyed to ‘a significant portion of the general consuming public …
acting reasonably in the circumstances.’” This requires “extrinsic
evidence—ordinarily in the form of a survey—to show how reasonable consumers
interpret the challenged claims.” 
A footnote noted that “California courts have held that
proof of deception does not require expert testimony or consumer surveys,” but
the court here reasoned that “in such cases, the plaintiffs were also clearly able
to substantiate their allegations with admissible evidence regarding the actual
material falsity or misleading nature of the implied statements and were able
to demonstrate named Plaintiffs’ reliance on such statements.” By contrast,
here plaintiffs didn’t prove the material falsity or misleadingess of the
statements on the supplement’s labeling, and the individual plaintiffs (after
denial of class certification) never testified that they saw or relied upon any
of the purported implied disease claims on the producer’s website.  Comment: saying that falsity and reliance is
required is a completely different thing than saying that survey evidence of consumer perception is
required.  This is how doctrine changes:
a shift of emphasis, and after a few rounds of judicial telephone, the elements
required to succeed are different.

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