Homeopathic products don't dilute plaintiffs' litigiousness

Allen v. Hylands, Inc., 2012 WL 1656750 (C.D. Cal.)

Plaintiffs sued Hylands for the usual California claims, including breach of warranty, based on claims about defendants' homeopathic products.  The court did some housekeeping here: first, it rejected defendants’ argument that plaintiffs lacked standing because they weren't California citizens and their alleged injuries occurred out of state.  But Mazza didn’t hold that out of state plaintiffs’ claims must be brought under their own state laws.  Rather, it explicitly left open the possibility of certifying subclasses grouped around materially different bodies of law.  Defendants didn’t argue that Florida or Georgia, the states from which the named plaintiffs hailed, had materially different consumer protection laws, so there was no present basis to find that California law couldn’t be applied. 

And anyway, choice of law is not the same thing as standing; indeed, Mazza rejected the standing argument while still finding that class treatment was inappropriate.  (I understand why defendants are calling everything and the kitchen sink a “standing” challenge.  But they’re still wrong.)  As for standing, plaintiffs alleged that defendants advertised their homeopathic products as possessing certain benefits but in fact knew that their products contained no active ingredients in quantities that could deliver those benefits.  They also alleged reliance and sought monetary and injunctive relief.  That was sufficient for standing.

On the warranty claims, defendants contended that plaintiffs failed to identify any false affirmations of fact or promises.  Fact v. opinion can be indicated by a lack of specificity or an equivocal statement, though even statements of opinion can become warranties if they’re part of the basis of the bargain.  Defendants argued that there were two kinds of statements at issue: first, factual statements about the products themselves instead of intended use or effect, which were affirmations of fact but plaintiffs didn’t challenge.  (E.g., “Soft tablets dissolve instantly”; “100% natural”;“Quick dissolving tablets”; “Aspirin free”; “Gentle on Skin No Harsh Chemicals”; and “non-habit forming.”)  The court suggested that plaintiffs were in fact challenging the accuracy of these statements.

Second, there were statements about symptoms for which the products purportedly provided relief, which defendants argued weren’t promises.  E.g., “relief of simple nervous tension and occasional sleeplessness”; “sleep aid”; “for restless or wakeful sleep from exhaustion”; “for stress, nervousness or nervous headache”; “Relieve Pain and Irritability from Teething”; “Migraine Headache Relief”; “Natural Relief for Itching, Burning and Crusting Skin Due to Exposure to Poison Ivy or Oak”; “Symptomatic Relief for Colic in Children”; and “Temporarily relieves the symptoms of pain and cramps in lower body.”  The court was appropriately unimpressed: “there is no reason why statements such as ‘Migraine Headache Relief’ are any less factual in nature than statements that Defendants concede are factual, such as ‘Gentle on Skin No Harsh Chemicals.’  Both require a certain amount of contextualization to evaluate (e.g., How much migraine relief? How gentle on the skin?), yet this does not render them insusceptible to verification.”  A statement of fact doesn’t require a statement that the products “will work all the time for everyone” or “are guaranteed ‘cures’ for any ailments or illnesses.”  Rather, plaintiffs alleged that defendants wouldn’t work for anyone, because they either lacked ingredients that will produce the advertised relief or contained the ingredients in insufficient quantities to be effective.  That was enough for a motion to dismiss.

Defendants also argued that they complied with FDA regulations requiring a statement of intended use, and that the regulations don’t require OTC drugs to be 100% effective.  The court was puzzled by this argument: plaintiffs weren’t arguing 100% effectiveness as a standard, nor did defendants make a preemption argument, and the FDA prohibits mislabeling anyway.

The court find that plaintiffs were limited to making claims against products they’d purchased or were likely to purchase, not all homeopathic products in defendants’ line that had the same alleged problems: as to the others, they lacked standing because they had no redressable injury.  (Depending on the similarities between the products, this could be a mistake in the class action context, where the key is that the members’ claims have sufficient commonality.)

The court also refused to consolidate this case with a different one against defendants involving defendants’ homeopathic cold and flu remedies, which were not among the seven products identified by the plaintiffs here.  The court found that there might be little overlap in class membership, and that the other action raised federal and New Jersey claims that could complicate matters.