In false advertising cases involving a wide range of consumer products, including dietary supplements and cosmetics, plaintiffs often allege that the manufacturer does not have adequate scientific “substantiation” for its advertising claims, rendering those claims false and misleading under state consumer protection laws.  Over the past few years, a strong defense has emerged in these so-called “lack of substantiation” cases brought by private plaintiffs.  As previously discussed on this blog, two district courts granted motions for summary judgment in “lack of substantiation” cases last year.  In both cases, Stanley v. Bayer Healthcare LLC, No. 11-cv-862, 2012 U.S. Dist. LEXIS 47895 (S.D. Cal. Apr. 23, 2012) and Scheuerman v. Nestle Healthcare Nutrition, Inc., No. 10-3684, 2012 U.S. Dist. LEXIS 99397 (D.N.J. July 16, 2012), the courts found that there is no private right of action for “lack of substantiation” – only regulatory authorities such as the Federal Trade Commission (FTC) can bring claims for unsubstantiated advertising – and that the plaintiffs in those cases did not meet their burden of affirmatively demonstrating that the advertising claims at issue were false and misleading.  In Stanley, the court found that the opinions of plaintiff’s experts that Bayer’s advertising was not substantiated with the level of scientific proof that they believed was required could not establish that the challenged advertising was actually false, and in Scheuerman, the court found that while the plaintiffs’ experts took issue with the strength and significance of the studies Nestlé relied on to support its claims, those criticisms did not satisfy the plaintiffs’ burden of demonstrating that the advertising claims were false or misleading.

Last week, in Johns v. Bayer Corporation, No. 09cv1935, 2013 U.S. Dist. LEXIS 51823 (S.D. Cal. Apr. 10, 2013), the Southern District of California issued another significant decision in this area.  In Johns, the plaintiffs alleged that Bayer’s advertising for two of its One-A-Day vitamin products (Men’s Health Formula and Men’s 50+ Advantage) was false and misleading because the claims that the products supported prostate health and that the selenium in one of the products may reduce the risk of prostate cancer were not adequately substantiated with scientific evidence.  As in the Stanley and Scheuerman cases, the court found that there is no private right of action for unsubstantiated advertising, and that the plaintiffs bear the burden of proving the falsity of the advertising claims.  In a lengthy and detailed opinion, the court concluded that the plaintiffs did not meet this burden since they did not offer any affirmative scientific evidence that  “disproved” Bayer’s advertising claims concerning prostate health.  In reaching this conclusion, the court found that the “strength of Bayer’s evidence is irrelevant” because plaintiffs have the burden of proving through scientific evidence that the ingredients in the products did not provide the advertised benefits.

In addition to these decisions, other courts have, in varying contexts, dismissed claims in consumer products false advertising  cases where the plaintiffs allege a “lack of substantiation” for the advertising claims:  Gaul v. Bayer Healthcare, LLC, No. 12-5110, 2013 U.S. Dist. LEXIS 22637 (D.N.J. Feb. 11, 2013); Chavez v. Nestle, USA, Inc., No. 09-9192, 2011 U.S. Dist. LEXIS 58733 (C.D. Cal. May 22, 2011); Pelkey v. McNeill Consumer Healthcare, No. 10-61853, 2011 U.S. Dist. LEXIS 21372 (S.D. Fla. Feb. 15, 2011); Franulovic v. Coca Cola Co., 390 Fed. Appx. 125, 128 (3d Cir. 2010); Fraker v. Bayer Corp., No. 08-1564, 2009 U.S. Dist. LEXIS 125633 (E.D. Cal. Oct. 2, 2009).

These decisions, and the reasoning behind them, provide a strong defense in consumer class actions that allege a “lack of substantiation” for advertising claims.  It is not sufficient for plaintiffs in such cases to attack or poke holes in the studies that a manufacturer relies on to support its advertising claims; instead, plaintiffs must present scientific evidence that affirmatively disproves the advertising claims, which is an extremely high and difficult bar for plaintiffs to meet.