Defendant NI sells a colloidal silver dietary supplement, “basically
positively charged silver particles suspended in purified water,” that claims
to provide immune support. Nilon bought
it and said it didn’t work, and filed the usual California claims. Though his complaint focused mostly on lack
of substantiation, he also alleged that it didn’t provide the promised benefits
to him. The court summarized: “Nilon and
Natural-Immunogenics make all of the arguments the Court would expect them to”
about class certification. While the court was inclined to grant the motion for
a restitution class of purchasers who were exposed to the claims at issue and
bought a product allegedly worth less than what they paid. The restitution would be the difference
between the price paid for the product, Sovereign Silver, and the value
actually received. If Sovereign Silver did absolutely nothing, its value would
be zero and the restitution award would be a total refund. “But there is a threshold problem with this
case that the Court can’t look past.”
Lack of substantiation claims can’t be brought by private
parties under California law, but that’s what Nilon’s complaint was. Nilon might be able to go ahead if he could
cite a study purporting to show that colloidal silver doesn’t benefit the immune system; he might also proceed “if the
Sovereign Silver packaging actually said its benefits have been scientifically
proven (which it does not) and there are no such studies.” But the complaint only alleged lack of
substantiation, which wasn’t enough.
Comment: I am still waiting for a court to address the argument that a
health claim of this type necessarily implies scientific substantiation—known
as an “establishment claim” in Lanham Act terms; Lanham Act cases recognize
that establishment claims can be made by implication. Although not all claims are establishment
claims, in the modern world there’s a good case to be made that all health claims, especially supplement claims, are establishment
claims. That being the case, NI would
have made a falsifiable statement, at least by necessary implication, about the
quality of its evidence. That statement
could then be disproved by showing that studies didn’t support these claims, which were in fact nonscientific and
at best hope-based contrary to the message that a reasonable consumer would
receive.
Anyhow, the court denied the motion for class certification
and allowed Nilon to file an amended complaint, but cautioned that, to the
extent the complaint relied on the product’s failure to work for him or other
specific plaintiffs, that would raise individual issues cutting against class
certification. Or Nilon could explain to
the court why this wasn’t a lack of substantiation case. If this barrier were to be overcome somehow,
the court would be inclined to grant certification.
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