We’ve thought a lot about the various secondary entities that plaintiffs sometimes sue in prescription medical product liability litigation – such as sales reps, physicians, hospitals, pharmacies, distributors, and a number of others. While we were watching “Hamilton” sweep the Tonys last week, though, we saw commercials for certain prescription drugs that featured various celebrity endorsers. In another possible variant of “The World Turned Upside Down,” that started us wondering whether plaintiffs could sue such endorsers.
So we took a look.
The answer seems to be “no.” There isn’t much law, but there is a little. The Federal Trade Commission once tried to sue directly a celebrity endorser of a dietary supplement, and drew back a nub on a false advertising claim. First, the celebrity endorser “had no actual knowledge of any material misrepresentations regarding” the product. F.T.C. v. Garvey, 383 F.3d 891, 901 (9th Cir. 2004). There was no evidence that the endorser met the FTC’s own standard for liability – that he was “recklessly indifferent to the truth of his statements or was aware that fraud was highly probable and intentionally avoided the truth.” Id. at 902. Even the FTC’s own guides (which “lack force of law”) required only that endorsements “reflect the honest opinions, findings, beliefs, or experience of the endorser.” Id. at 904-05.
But how about private plaintiffs? The Ninth Circuit looked at that recently, too, and found that none of a plaintiff’s litany of claims − Magnuson-Moss, California UCL, CLRA, false advertising, express and implied warranty, and unjust enrichment – would lie against a celebrity endorser of a different dietary supplement. The plaintiff could not escape the endorser’s not being in the chain of distribution of the product in question.
Because [the endorser] is merely the celebrity spokesperson for [the company] and not the seller of [the product], the district court properly dismissed the claims against him. [The endorser] never held title to [the product] nor passed title to Plaintiffs. Therefore, we affirm dismissal on alternate grounds only as to defendant [endorser] based on Plaintiffs’ failure to state a claim.
Luman v. Theismann, ___ F. Appx. ___, 2016 WL 1393432, at *2 (9th Cir. March 16, 2016).
That’s it, apparently, even though plaintiffs (predictably) hate celebrity endorsements, along with anything else that makes a target product look good. We ran some broad searches and looked through a lot of irrelevant cases, but we could find no other opinion addressing an instance – let alone any successful instance – of a user of an FDA-regulated product, or any product for that matter, suing a celebrity endorser of that product for making allegedly false statements about the product − although we know it does happen, as this recent 360 article (behind pay wall) involving a suit against “Snooki,” indicates.