Last month, the Fourth Circuit ruled that plaintiffs cannot maintain false advertising claims if they allege that scientific consensus generally weighs against the defendants’ advertising claims; instead, claims will only survive a motion to dismiss if the plaintiffs plead that all reasonable experts agree that defendant’s representations about its product were false. Brown v. GNC Corp. (In re GNC Corp., Triflex Prods. Mktg. & Sales Practices Litig. (No. II)), 14-1724, 2015 U.S. App. LEXIS 10351 (4th Cir. Md. June 19, 2015). This ruling supports the idea that in the face of scientific uncertainty, courts should favor consumer choice and the availability of diverse products on the market.

In several class actions consolidated before the District of Maryland, the plaintiffs alleged that GNC and Rite Aid violated consumer protections laws by falsely advertising the benefits of joint supplements. The plaintiffs argued a number of scientific studies had shown that the active ingredients in the supplements were no more effective than a placebo, and that “the vast weight of competent clinical evidence” showed that the ingredients were ineffective. They therefore alleged that the companies’ claims about the performance of the supplements, such as that they promote joint mobility and rebuild cartilage, were false.

The companies moved to dismiss the complaint, arguing that the plaintiffs failed to adequately plead that the statements were false. The district court agreed, holding that even if the weight of scientific evidence favors the plaintiff, a manufacturer is not liable for false advertising if at least one qualified expert avers that the manufacturer’s statements about the product are true.

The Fourth Circuit affirmed, finding that plaintiffs could only maintain a false advertising claim if they argued that the defendants’ statements were “literally false.” Under this standard, a plaintiff can only maintain a false advertising claim if “all reasonable experts in the field agree that the representations are false.”

The court also rejected the plaintiffs’ arguments that the district court had improperly weighed in on a “battle of the experts” at the motion to dismiss stage. As the Fourth Circuit explained, the district court did not rule that the defendants’ experts were more persuasive, but instead found that the very existence of reasonable disagreement between experts defeated the falsity claim.

In so ruling, the court distinguished the case from cases where the plaintiff alleges that the statements were true but misleading or that the company represented minority viewpoints as being accepted by the broader scientific community. In the latter two situations, a plaintiff could maintain a claim even without scientific consensus about the falsity of the claims.

Of particular interest, in affirming the district court’s ruling, the Fourth Circuit highlighted an important policy argument underlying this falsity standard. The court noted that one of the reasons for the district court’s dismissal of the action was that “[i]t is unfair to consumers who wish to gamble” that products “may be effective, if lay juries can effectively ban the sale” of the products “simply because the evidence of their effectiveness is inconclusive.” The assertion that courts should preserve consumer choice in the face of scientific uncertainty may prove to be a compelling argument for other circuits to adopt a similarly high falsity standard in consumer product advertising cases.

The dismissal of these claims has already had ramifications in other cases within the Fourth Circuit, as defendants in false advertising litigation related to football helmets have moved for dismissal based on the Fourth Circuit’s adoption of the “no reasonable expert” falsity standard.