Ninth Circuit flips summary judgment decision that “asked too much”

Olfactory Tragedy

You’re walking down a street in an affluent neighborhood in a major U.S. city — let’s say Carroll Gardens in Brooklyn, New York. It’s early fall, and you’re having a nice stroll in the cool morning air. You turn a corner onto a lovely residential street ablaze with autumn colors supplied by rows of slender, graceful trees that line the sidewalks. The broad, fanlike leaves burn a bright, almost impossible yellow; fallen leaves blanket the sidewalks, transforming the block into an inviting Technicolor byway. You walk down the block to take it all in, and then the smell hits you.

The fruitlike seeds of the Ginkgo biloba tree put out a stench that has been likened to vomit or bad cheese; it’s enough to make the tree’s popularity and cultivation in the United States something of a mystery (they were brought here from original wild populations in Asia). Why bring that stench to another continent?

But Gingkoes are truly fascinating organisms. They are resistant to pollution and pests alike. They thrive in urban environments. They are the oldest surviving species of seed tree — Gingko fossils can be found all the way back in the Early Triassic period. As one expert rhapsodized, Gingko bilobas are “an assemblage of changelessness, a heritage from worlds of an age, too remote for our human intelligence to grasp, a tree which has in its keeping the secrets of an immeasurable past.”

Perhaps it is the plant’s vast antiquity and exotic origins that have led people to ascribe all sorts of health benefits to consuming its seeds.

Smell be damned.

Expert Slap Fight

Gingko seeds and various extracts derived from it are consumed as food or as a dietary supplement around the world. Benefits are said to include improved memory and attention, but these claims are hotly disputed.

Which leads us to our case.

Back in July 2015, California resident Kathleen Sonner filed a complaintagainst Schwabe International GmBh and its subsidiary Nature’s Way, manufacturers of Ginkgo biloba-infused supplements Ginkgold® Advanced Ginkgo Extract and Ginkgold Max Advanced Ginkgo Extract.” Sonner claimed that the companies had violated California’s Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) by falsely advertising that the products could improve “cognitive health and brain function.”

“All available, reliable scientific evidence demonstrates that the Ginkgold products have no efficacy at all, are ineffective in the improvement of cognitive health, and provide no benefits related to increasing the memory, concentration, or healthy functioning of consumers’ brains,” the complaint read. A little more than a year into the proceedings, Schwabe and Nature’s Way moved for summary judgment, supplying expert testimony and scientific trials that supported their claims. Sonner responded with her own set of experts and studies, that reaffirmed her claims that Gingko biloba was “no more effective than a placebo.”

The Takeaway

In February 2017, the Central District of California ruled in favor of the defendants. While the court gave a nod to the experts and research on both sides, it weighed in for Schwabe because Sonner failed to challenge “the methodology, structure, or independence of [Schwabe’s] studies,” which meant that her evidence was “insufficient to allow a reasonable juror to conclude that there is no scientific support for [Schwabe’s] claims.”

Sonner appealed, and the Ninth Circuit flipped the script, noting that district courts in its circuit were split on what sort of summary judgment standard applied to false advertising claims when scientific evidence was brought to bear.

“Schwabe argues that a more exacting summary judgment standard applies to false advertising claims brought under the UCL and CLRA,” the Ninth Circuit wrote, noting that the argument leaned on a previous decision from the Fourth Circuit. In that case, the Fourth Circuit “reasoned that because the plaintiffs did ‘not allege that all scientists agree that [the products] are ineffective at providing the promised [] benefits,’ they failed to show as a matter of law that the advertised claims are false.”

Nonetheless, the Ninth Circuit rejected the Fourth Circuit’s argument, holding that “the notion that a plaintiff must not only produce affirmative evidence, but also fatally undermine the defendant’s evidence” to move ahead to trial was “unpersuasive.”

Advertisers and their counsel in the Ninth Circuit now have a clearer, although more limited, pathway to summary judgment than they did before.