Monday, July 23, 2012

Weakness in evidence didn't make Nestle's "clinically shown" claims false

Scheuerman v. Nestle Healthcare Nutrition, Inc., 2012 WL 2916827 (D.N.J.)
Plaintiffs brought a putative class action based on their purchases of Nestle’s BOOST Kid Essentials (BKE), a drink that Nestle promoted as having health benefits. It was sold with a separately packaged straw containing a strand of probiotic bacteria. Plaintiffs alleged that Nestle explicitly or implicitly claimed that BKE prevented upper respiratory tract infections in children, provided “Immunity Protection,” was “Nutritionally Complete Drink with PROBIOTICS to Help Keep Kids Healthy,” strengthened the immune system, protected against cold and flu viruses (without using those terms), reduced the duration of diarrhea, and reduced absences from daycare or school due to illness. Nestle allegedly lacked a reasonable basis for these claims.
Despite the alleged lack of substantiation, Nestle made “clinically shown” claims in some of its marketing, such as a “Straw Power” TV ad stating: (1) the product “has been clinically shown to help strengthen the immune system when consumed daily;” (2) “Probiotic straw / Clinically shown to help strengthen the immune system;” and (3) “... and probiotics clinically shown to help strengthen the immune system.” Another ad. Plaintiffs’ claims were based only on the “clinically shown” statements; they didn’t plead that Boost failed to provide the promised nutrition or health benefits, bur only that the claims weren’t sufficiently substantiated to count as clinically shown.
The court was unimpressed by plaintiffs’ “piggybacking” on the successful FTC enforcement action against the same claims, which it commented in a footnote should affect fees, though that didn’t matter here.
The court seemed to accept Nestle’s argument that the claims were insufficient because they were based on failure to substantiate, which aren’t cognizable under the relevant state consumer protection statutes, those of New Jersey and California. I say “seemed” because the court ruled that the claims were basically non-cognizable failure to substantiate claims, but then did address them on their own terms.  The court did not refer to the Lanham Act precedent separating “establishment claims,” where a plaintiff can prove literal falsity by showing exactly what plaintiffs alleged—that claimed clinical proof didn’t count as clinical proof—from “nonestablishment claims,” where the plaintiff has to show the falsity of the underlying claim. The standard in both cases is still falsity; the question is what has to be shown to be false, and that depends on what the defendant actually claimed.
There’s no standalone “lack of substantiation” claim under most state consumer protection statutes, but that rule makes sense when the defendant doesn’t claim to have substantiation. When the defendant does so claim in its ads, then applying the case law as the court seemingly started out doing here carves out a set of explicit claims that plaintiffs aren’t allowed to show are false—which is a very different thing from allowing plaintiffs to proceed against anyone as if all ads made establishment claims.
Still, the subsequent discussion suggests that this court would recognize a “clinically shown” statement made with completely insufficient proof as false and misleading.  The court turned to plaintiffs’ “attempt to transform what is essentially a prior substantiation claim into a consumer fraud claim by arguing that Nestle’s use of the words ‘clinically shown’ constitutes a false and misleading statement.” Here, despite expert submissions, the court ruled that plaintiffs failed to sufficiently prove that Nestle lacked clinical support for the health benefits it attributed to its probiotic, and granted summary judgment to Nestle.
“At best, Plaintiffs can prove that Nestle's studies were not sufficiently strong; while this may be enough to make out an ordinary claim not premised on a theory of fraud, it is insufficient to demonstrate entitlement to relief under the consumer fraud statutes cited above.” This literally elides the key question: sufficiently strong to do what? The issue is whether they are sufficiently strong to count as clinical proof. The court found that plaintiffs’ experts could only opine that there was “limited support” for Nestle’s claims, and “limited” or “weak support” wasn’t enough for falsity, though the court suggested that it could ground another type of legal claim. The court pointed out that even plaintiffs’ experts found some of the science good, e.g., “[v]ery good basic science data has been presented, but this must be translated to better ascertain its clinical application.” Nestle’s data also related only to children of certain ages, but “[t]he fact that Nestle relies upon studies that demonstrate LRP or similar probiotics' effectiveness in specific age groups does not render any of Nestle's advertising claims—which never indicated a specific age range … —false or misleading.”
In the end, these attacks didn’t satisfy plaintiffs’ burden to show that the “clinically shown” claims were actually false or misleading. “Plaintiffs fail to demonstrate that any customers were misled into believing that Nestle possessed a clinical showing for the immunity-related health benefits of the probiotic in BKE when it did not.”
This also got rid of the negligent misrepresentation claims, though the court didn’t grant summary judgment on the breach of express warranty claim because both sides failed to brief the issues sufficiently. 

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