Private plaintiffs should be required to show that advertising claims are actually false and not merely unsubstantiated, CRN explained in a “friend of the court” brief submitted last week in Sonner v. Schwabe North America, Inc. “Allowing a patchwork of conflicting private actor-driven decisions on any single dietary ingredient stands to dilute the significance and authority of expert government actors and discourage manufacturers from innovating in the nutrition space, or disseminating health benefit claims at all,” CRN’s amicus brief argued, supporting Schwabe North America, Inc.’s petition for a rehearing of a case involving a dispute over cognitive health claims for ginkgo biloba supplements. The brief further noted, “Given the complexities of nutrition science and the unique expertise—and public health mindset—of regulators, this discrete group should continue to be the sole arbiters in weighing substantiation. If private actors are allowed to seize on any inconsistency or weakness that might be found in a complex body of research, both advertisers—and consumers who rely on their products—stand to be harmed.”
Reversal of fortune
On Dec. 26, 2018, the Court of Appeals for the Ninth Circuit reversed a district court’s previous decision in Sonner v. Schwabe North America, Inc. The Central District Court of California had dismissed the case on summary judgment, finding that the plaintiff's evidence was "insufficient to allow a reasonable juror [to] conclude that there is no scientific support for Defendants' claims." The Ninth Circuit, on appeal, reversed the district court decision, holding that the district court had applied a more exacting standard for summary judgment than is required. Schwabe filed a petition requesting an en banc review of this decision, meaning the case would be heard before all the judges of a court rather than only a select panel of judges. If the Ninth Circuit’s decision is permitted to stand, it could make it increasingly difficult for defendants to dismiss a false advertising case through summary judgment in California courts
Plaintiff’s evidence does not invalidate Schwabe’s science
In Sonner, the plaintiff alleged that the ginkgo biloba products were falsely labeled as capable of improving cognitive functions in violation of California's Unfair Competition Law (UCL) and the Consumers Legal Remedies Act (CLRA). Under these statutes, to prevail, a private plaintiff must be able to show that the advertising claims are actually false. Private plaintiffs cannot bring cases for lack of substantiation. The plaintiff in Sonner provided a conflicting expert report and scientific evidence but did not offer any evidence invalidating defendants' experts or scientific evidence. The amicus brief, prepared for CRN by Associate Member Amin Talati Upadhye, also cited the King Bio case as precedent-setting as it “…properly limits the role of private litigants by requiring that they ‘affirmatively prove that [an advertising claim] is a false or misleading statement and not merely one that is unsubstantiated.’” Contact Megan Olsen with questions (202-204-7672).