For plaintiffs concerned that the Fourth Circuit Court of Appeals’ June 19, 2015 decision in Brown v. GNC Corp. signaled the muscling in of a stricter new pleading standard for false advertising class actions nationwide, a recent ruling out of the Central District of California likely acted as a pacifier. On July 14, 2015, U.S. District Judge John A. Kronstadt of the Central District of California held in Zakaria v. Gerber Products Co. that plaintiff’s putative class action against Gerber over the advertising of baby food could proceed despite the Fourth Circuit’s recent GNC decision.
In Brown v. GNC Corp., plaintiffs alleged that various health claims made on defendant’s product packaging were false because “the vast weight of competent and reliable scientific evidence” did not support these claims. The Fourth Circuit held that this wasn’t enough to plead falsity. Rather, to adequately plead that a claim was literally false, a plaintiff must allege that, “all reasonable experts in the field agree that the representations are false” to survive a motion to dismiss. But just as potential defendants might have begun to feel swaddled in this new found protection, Judge Kronstadt allowed the Zakaria case to proceed, holding that, at least in California, plaintiffs do not have to reach this new high pleading bar.
The Zakaria plaintiff alleged that Gerber’s claim that its Good Start® Gentle baby food helps prevent babies from developing allergies was both false and misleading. Judge Kronstadt denied Gerber’s motion to reconsider the court’s prior decision denying Gerber’s motion to dismiss the complaint, rejecting Gerber’s invocation of GNC as representing a “significant, intervening change of law.”
Judge Kronstadt noted that the Fourth Circuit’s ruling was not binding authority in the Ninth Circuit and found it unpersuasive for three primary reasons. First, the GNC analysis was concerned with literally false claims, but the claims against Gerber were brought under California law, which permits a false advertising claim to be stated for ads that are misleading but true, as well as those that are literally false. Judge Kronstadt noted that the Fourth Circuit engaged in little analysis of California law in GNC. Second, issues of fact about whether Gerber’s claim was in fact false (and not just about whether all experts agree that the claim was false) were raised by the pleadings, which necessitated a trial. And third, GNC “left open the possibility that a false advertising claim could be brought where a manufacturer made representations that implied greater support for its health claims than were present.” Here plaintiff alleged that Gerber misrepresented that the FDA endorsed the health claims at issue.
Watch this space to see whether Zakaria signals the first baby steps towards a rejection of GNC, or whether other courts beyond those in California and the Ninth Circuit will embrace the Fourth Circuit’s fledgling precedent.