On November 25, 2014, just in time for Thanksgiving, Judge Bryan Foster in San Bernardino Superior Court tentatively entered a judgment in favor of Green Pharmaceuticals, following a week-long bench trial.
The case, filed on June 28, 2011 by plaintiff Rachel Rosendez, brought claims against Green Pharmaceuticals stemming from its manufacture and sale of the product SnoreStop. Plaintiff argued that the over-the-counter homeopathic product was not effective in stopping snoring, based on both her own experience and a lack of scientific evidence demonstrating the effectiveness of its ingredients.
Based on these allegations, Plaintiff argued violations of the California Consumer Legal Remedies Act (also known as the CLRA), and California Business and Professions Code Sections 17200 and 17500 (known as the UCL and FAL, respectively).
A class of California purchasers of the product was certified on September 9, 2013 and the case was tried before Judge Foster in September 2014.
Plaintiff’s principle evidence that SnoreStop was falsely advertised was the testimony of Dr. Lynn Willis, a pharmacologist who testified that there was not sufficient clinical evidence or studies to show that the combined ingredients of SnoreStop alleviated snoring.
Green countered with testimony that consumers are satisfied with the product, and expert testimony from a homeopathic practitioner who discussed the theory of homeopathy and his opinion about the effectiveness of homeopathic remedies.
Despite the fact that he deemed the testimony of Green’s expert not credible (because he was not an impartial expert, but rather a passionate advocate for homeopathy), Judge Foster nevertheless found that Plaintiff failed to meet her burden to demonstrate that statements that SnoreStop effectively treated snoring were false and/or misleading.
For support, Judge Foster cited the decision in National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., which importantly held that private false advertising plaintiffs bear the burden of proving that products (in that case, homeopathic drugs) did not perform as advertised and could not effectively shift the burden to defendants to provide adequate proof that the products work.
This makes sense, as private plaintiffs are not allowed to bring so-called “lack of substantiation” claims, i.e., arguing that a product cannot be marketed as effective because a manufacturer lacks adequate evidence that it works. “Lack of substantiation” claims may be brought by the Attorney general, or any city or district attorney, but are off limits to private plaintiffs, who must present evidence of actual falsity in order to prevail on their claims.
The judgment has yet to be finalized, however, it represents a significant victory for false advertising defendants, particularly those in the homeopathic drug arena (an industry which has recently been fodder for false advertising class actions). Although the vast majority of these cases settle well before reaching a courtroom, it is encouraging to see an affirmation that plaintiffs must actually prove that a representation is false and/or misleading, and not merely claim that they believe evidence supporting advertising claims is “not enough.” To hold any differently would mean that once sued, defendants essentially bore the burden of demonstrating that their advertising is not false−improperly relieving plaintiffs of proving any element of their case.
