Friday, November 09, 2012

... but consumers do need to satisfy 9(b) in California

Eckler v. Wal-Mart Stores, Inc., 2012 WL 5382218 (S.D. Cal.)

Eckler bought Equate Glucosamine MSM Advanced Triple Strength, marketed as good for the health and comfort of joints, and allegedly didn’t receive the promised benefits.  She sued under the California UCL and CLRA and brought a breach of warranty claim.

Wal-Mart argued that her claims were impermissible “lack of substantiation” claims.  Eckler’s claims did indeed draw heavily on the alleged absence of any scientific evidence that glucosamine was good for joints, e.g., “Clinical cause and effect studies have found no causative link between the primary purported active ingredients in Equate and the prevention of joint degeneration or relief from joint discomfort. And, there are no competent or well-designed clinical studies that support Wal–Mart's joint comfort, renewal and rejuvenation representations.”  She also alleged, “the National Institute of Health ... concluded that ‘[g]lucosamine and chondroitin sulfate alone or in combination did not reduce pain effectively in the overall group of patients with osteoarthritis of the knee.’”  Still, the complaint reduced to allegations that the purported benefits of glucosamine were (1) completely unsubstantiated and (2) had been disproved by science.  The court held that (1) and (2) were not the same for these purposes. There’s a difference between an unproved claim and a disproved claim. “A study showing no connection between Equate's active ingredients and joint health, however, is a fact that suggests Equate's claims are false.”  That’s different from a scientific opinion that the evidence is inconclusive.

In a footnote, the court expressed skepticism that Eckler could know that Equate didn’t work for her, but then pointed out that this is why scientific studies are so important for claims of this nature—this type of credence claim is one that an individual consumer must be able to rely on, since she can never evaluate it for herself:

Of course, how would she actually know that [the product didn’t benefit her]? The health and comfort of joints is probably influenced by a number of variables. Did Eckler keep all of them constant, adjust for ones that can't be kept constant (like aging), and then somehow have her cartilage and joints examined? Did she keep precise records of how much Equate she took, why she took it, and just how long she took it for? Can she document what her physical condition was before she and after she took Equate? Probably not. What's more likely is that she took Equate casually and just didn't feel much better, but that makes her own claims just as speculative as she alleges Equate's benefits are. On the other hand, Eckler can't reasonably be expected to come forward with some rigorous medical exam that shows Equate did her no good. That's just the nature of the product at issue; it's really only scientific testing that can show a supplement's claims to truly be false and/or misleading.

The complaint focused on the fifth of five representations on the product package, claiming that it was “[f]ormulated to help [s]upport joint comfort [and][r]ebuild cartilage and lubricate joints.”  The packaging didn’t specifically claim to help all joints for all ages, but “[t]he packaging does suggest, at a minimum, that Equate is good for the shoulder, wrist, elbow, hip, and knee joints; a picture of a human body on the packaging calls attention to these areas specifically.”  But it was less clear that the claim suggested a benefit to all persons at all stages of joint disease, especially given the disclaimer that the product “is not intended to diagnose, treat, cure, or prevent any disease.”

Eckler’s complaint was apparently rather kitchen-sinkish in its approach to the UCL.  The court treated the UCL claim as fundamentally one of “fraudulent” conduct, not “unlawful” or “unfair.” Rule 9(b) applied to UCL claims alleging fraudulent conduct, even if they are based on the unlawful/unfair prongs.  (Even though they don’t require intent to defraud … sigh.)  Anyway, Eckler did identify the specific representations at issue, the specific studies that allegedly falsified them (which I’d think goes beyond Rule 9(b)’s requirements), and when and where she bought the product, along with its price.  That seemed adequate to the court.

Still, the court thought that cases about explicit claims of clinical proof were inapposite.  But, as the court itself previously noted, how else is a health claim to be proven?  A reasonable consumer would expect some type of systematic study to be behind a health claim; implicit in any health claim is a representation that there is scientific evidence to support it.  Nonetheless, the plaintiff did allege that there were good studies disproving the health claims, showing that they didn’t provide any benefit over placebo.

However, none of the studies at issue involved Wal-Mart’s product, which had a number of ingredients, not just the studied glucosamine and chondroitin sulfate, but also vitamins, manganese, sodium, Boswellia serrata, Hyaluronic Acid, etc.  And the overall formulation was the basis of Wal-Mart’s claims.  Second, Eckler’s studies all focused on osteoarthritis, but the product here didn’t claim to reduce pain and cartilage loss associated with osteoarthritis.  (However, she might be able to allege that the studies also disproved the claims to rebuild cartilage, lubricate joints, or support joint comfort.)

Eckler argued that these were merits arguments, inappropriate for a motion to dismiss.  But if Wal-Mart was right, the studies wouldn’t show that Wal-Mart’s product didn’t work (just that two key ingredients didn’t, and who knows, the gelatin and sodium in it might change the effects!), and Eckler wouldn’t have alleged any facts that could be used to infer that Wal-Mart had advertised falsely.  Plus, the disclaimer made it harder for Eckler to argue that the product promised benefits for all stages of joint disease.  Other cases discounting disclaimers on a motion to dismiss involved direct contradiction of other representations.  Thus, in the end, the court didn’t find that Eckler’s studies made her claim facially plausible.  “The studies allegedly show that glucosamine doesn't alleviate the symptoms of osteoarthritis in the hip and knee. That is a very particular showing with respect to a degenerative joint disease, and in the Court's judgment it doesn't address the far more general claim—which is made by the Equate representations—that glucosamine is good for the body's joints.”  Along with the disease disclaimer, the packaging touted the product as a curative for “[o]verexertion, the natural aging process and everyday wear and tear.”  This mismatch between the claims and the allegedly contrary evidence was too great.  And that got rid of the CLRA claim too.  These claims were dismissed without prejudice.

The breach of warranty claim was dismissed with prejudice for failure to give Wal-Mart notice.

The court had some advice for Eckler if she decided to file an amended complaint.  To the extent her claims turned on her own experience, she needed to say more than “I took Equate and didn't feel any better.”  Also, she needed to do more to explain why the studies contradicted the actual representations at issue.  (It seems to me that she could do so by, for example, using the FDA’s studies showing that consumers do not distinguish between structure/function and disease claims, thus pleading that consumers would not be disabused of their illusions by the disease disclaimer.)  The court’s “biggest problem” was that it didn’t see a link between studies showing that glucosamine doesn’t alleviate osteoarthritis and this supplement’s claims, “explicitly not intended to treat a disease, that it is formulated to support joint comfort, rebuilt cartilage, and lubricate joints.”

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