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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