Wednesday, December 11, 2013

Briefly noted: consumers challenging express substantiation claims

McCrary v. Elations Co., No. EDCV 13–0242, 2013 WL 6403073 (C.D. Cal. July 12, 2013)

While rejecting claims based on defendant’s supplement’s general ad claims to support joint health and the like, the court allows McCrary to challenge the explicit claim that the Elations product was a “clinically proven combination.” McCrary alleged that this claim was false because the combination of ingredients in Elations had never been tested.  Elations argued that private plaintiffs can’t bring lack of substantiation claims, but McCrary could allege that no credible scientific evidence supported a representation “when Defendant puts the clinical proof for its product at issue.” Given the express claim for clinical proof, McCrary plausibly alleged falsity when he alleged the absence of such proof.

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