suit against laser-bearing baseball hat (for hair regrowth) proceeds

 Cooper v. Curallux LLC, 2020 WL 4732193, No. 20-cv-02455-PJH
(N.D. Cal. Aug. 14, 2020)

Curallux makes “baseball-style hats with lasers in them” and
advertises them as hair regrowth products that are “without side effects” and
“physician recommended.” Cooper brought the usual California claims. She
alleged that her side effects included itchy scalp, dry scalp, dandruff,
headaches, and dizziness. She further alleged that scientific studies and
experts in the field of hair restoration have identified several side effects
associated with the use of low level laser therapy for hair loss. Although
Curallux relied on eight physicians to endorse the products, Coopoer alleged
that these physicians have a financial incentive to make the purported
recommendations, while a reasonable consumer would interpret “physician
recommended” to mean a physician without financial incentives.

The court denied a motion to dismiss.

Defendant argued that these were mere lack of substantiation
claims, for which there is no private cause of action in California. Not so. A
false advertising claim is one in which the claim has “actually been
disproved,” such that “the plaintiff can point to evidence that directly
conflicts with the claim.”

For “without side effects,” Cooper alleged the existence of
side effects, confirmed by “[s]cientific studies and experts in the field of
hair restoration,” citing a study published in the medical journal Lasers in
Medical Science. This was a falsity claim, not a “there’s no evidence one way
or another” claim, which would be a substantiation claim.

Curallux tried to distinguish the study as not actually
discussing its specific product.  But
“[t]he technology (low level light treatment/therapy) and the goal (hair
growth) is the same in both the study and defendant’s products.” Although the
study didn’t list all the side effects alleged in the complaint, it did list
itchy scalp. Curallux posited that the helmet in the study might have caused
the side effects versus a hat by creating a warmer environment/higher humidity
on the scalp, and the study’s authors acknowledged this possibility, including
the itchy scalp reported in the control group. The court thought this was a
close case, but on a motion to dismiss plaintiff statted a claim.

“Physician recommended”: This was a misleadingness claim,
not a substantiation claim. Cooper agreed that physicians recommended the
product, but Curallux failed to disclose their biases. Curallux argued that she
was really saying that it had no basis to make its statement because the
physicians were biased, but the court didn’t agree, and I note that such
reasoning would make every falsity claim into a “lack of substantiation” claim;
as the court noted above, some claims are unsubstantiated because they are
false or misleading, and consumers can challenge such claims.

Warranty claims also survived.

Curallux tried to strike Cooper’s request for attorneys’
fees because the FTC already investigated Curallux and required Curallux to
change its advertising from “no side effects” to “no adverse side effects” and
“recommended by physicians” to “recommended by physicians within Capillus’
network.” Curallux argued that California Code of Civil Procedure § 1021.5
requires a plaintiff to demonstrate that he or she actually motivated a
defendant to change its advertising in order to recover attorneys’ fees. But
under the CLRA, Civil Code § 1780(e), a plaintiff prevailing in litigation
shall be awarded costs and attorneys’ fees; because she stated a claim, her
request for fees survived, though defendant could raise the issue later.

So too with the request for injunctive relief: “It is not
clear to the court that the FTC remedial action agreed to by defendant is
coextensive with plaintiff’s requested injunction.”

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