Judge Alsup seems to think cosmetic mask claims are false

Miller v. Peter Thomas Roth, LLC, 2020 WL 363045, No. C
19-00698 WHA (N.D. Cal. Jan. 22, 2020)
OK, he doesn’t say so outright, but wait for the bit about
the in-court demonstration he expects.
Defendants PTR Labs sell “specialty skincare products,” here
the Rose Stem Cell and Water Drench product lines. PTR Labs advertised the Rose
Stem Cell line with the “buzzwords” “bio repair,” “reparative,” “rejuvenates,”
and “regenerates,” and the Water Drench Products as “containing hyaluronic acid
which attracts and retains one thousand times its weight in water from moisture
in the atmosphere.” Plaintiffs sued for false advertising under the UCL, among
other things. Class certification was denied as moot without prejudice because
the court could resolve a liability determination and potentially enter a statewide
injunction against PTR Labs’ challenged ads without certifying a class. The court
would revisit whether there was a need for a class to distribute restitution if
plaintiffs succeed individually on the merits.
Here, the court denied defendants’ motion for summary
judgment, finding issues of fact on deceptiveness to a reasonable consumer. For
the Rose Stem Cell Products, the labels “rose stem cells,” “cutting edge
bio-technology,” “bio-repair,” and at times “regenerates” and “rejuvenates” could
cause the reasonable consumer to “believe that the Rose Stem Cell Mask is
capable of repairing skin.” While “[s]ome reasonable consumers might interpret
this as mere puffery, … others could sensibly conclude that rose stem cells
actually repair human skin.”  For the
Water Drench ad, a reasonable consumer could believe that hyaluronic acid
actually can attract and retain one thousand times its weight in water, despite
the use of “up to” to soften the claim. The court noted that “the plain focus
of the ad was one thousand times its weight in water. … Subtle qualifications
do not overcome the thrust of the ad.” Since the plaintiffs offered reasonable
interpretations of the ad claims, the court turned to evidence of falsity.
Plaintiffs’ expert, an organic chemist with experience in
human embryonic stem cell research, offered a “helpful declaration” that
created a genuine question as to falsity. For the Rose Stem Cell product, he
explained, among other things, that “[a] plant cell cannot become a human cell”
and that “[a]ny cell (animal or plant, stem cell or not) in a topically applied
cosmetic cannot affect cells in the skin, because the barrier function of the
skin prevents those cells from penetrating to the level of living cells.” The
jury would simply be asked to resolve whether the divergence between consumers’
reasonable interpretations of the ads and the truth was deceptive. It was
unnecessary for the falsity expert to discuss the specific ad language at
issue.
As to the “up to one thousand times its weight in water”
claim, the expert explained that the claim is “incredible on its face,” citing “[p]ublished
data from actual studies by real chemists establish[ing] that hyaluronic acid
binds a small amount of water, equivalent to about half the weight of the
hyaluronic acid.” As the court commented:
Our jury will look forward to an
in-court demonstration in which a certain amount of hyaluronic acid is placed
in a beaker, one thousand times that weight in water is placed in another
beaker, and the contents are combined, all watching to see if all the water
will be absorbed. Both parties’ experts would be well advised to prepare for
such a demonstration. [Query whether visual inspection could actually disclose
this, but still!]
However, plaintiffs didn’t submit evidence as to whether
hyaluronic acid draws in atmospheric vapor and provides long lasting
moisturizing benefits, so the court did grant summary judgment as to those
statements.
On standing, the Rose Stem Cell plaintiff couldn’t remember
when she saw the ad for the product, but she testified that she did rely on it
when she made a later purchase. That was ok. “When a manufacturer promotes a
lie about its products, those who were misled by the lie may well continue to
rely on the lie even after the manufacturer has withdrawn the lie from
circulation. Admittedly, [the plaintiff] will have to explain away a lot of
memory snafus at trial. Our jury may possibly think she is the liar. But all of
that goes to the weight, not admissibility, of her evidence.”

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