Monday, April 03, 2023

consumer survey can't make a scientifically wrong use of a term right

Gunaratna v. Dennis Gross Cosmetology LLC, No. CV 20-2311-MWF (GJSx), 2023 WL 2628620 (C.D. Cal. Mar. 15, 2023)

Plaintiff challenged defendant’s “C + Collagen” claim as falsely indicating that its product actually contained collagen.  

Defendant wants to make this action about whether “collagen” means “collagen” and what consumers understand “collagen” to mean. The problem for Defendant is that “collagen,” standing on its own, is not some undefined, amorphous term — there is a widely-accepted scientific definition describing collagen. Even Defendant’s own expert, when pressed, defines collagen as a protein only found in animals.

This affected the expert testimony that would be admitted.

Defendant is free to [argue] that the label does not convey that the products contain collagen and that the presence of collagen is not material to consumers’ purchasing decision. But Defendant is not free to offer its own definition of “collagen” unsupported by any reliable science in the record.

Thus, portions of expert reports that “blindly adopt the notion that ‘plant based collagen amino acids’ exist” would be excluded.

The role of a district court in screening experts is that of “a gatekeeper, not a fact finder.” “An expert can appropriately rely on the opinions of others ‘if other evidence supports his opinion and the record demonstrates that the expert conducted an independent evaluation of that evidence.’ ” And an expert may adopt his party’s version of the disputed facts, “unless those factual assumptions are ‘indisputably wrong.’ ”

This is a putative class action against a skincare company that allegedly falsely advertises products labeled “Dr. Dennis Gross C + Collagen,” because they “(admittedly) do not actually contain any collagen, as the word is typically and scientifically understood. Rather, the products contain vegetable-derived amino acid molecules, which Defendant claims mimic the structure of ‘hydrolyzed’ collagen. But collagen is a protein found exclusively in the cartilage, bone, and tissues of animals, fish, and humans, and is not found in plants.” There’s a market for collagen-containing products because it’s been linked to maintaining youthful skin, hair, and nails.

Defendant argued that its labels weren’t false because consumers understand “C + Collagen” to mean that the products contain Vitamin “C” (which it does), and Vitamin C boosts (“+”) the body’s natural production of “Collagen.” Plaintiffs pointed out that “+” is commonly used in the industry to indicate “and” not “boosts.”

Defendant also argued that the products actually contain plant-sourced “collagen amino acids,” that is, amino acids derived from corn, soy, and wheat, not from collagen, but that are  chemically and functionally identical to amino acids from hydrolyzed animal collagen. Plaintiffs argued that, if so, defendant should have invested in marketing to explain to consumers that plant-based amino acids have similar anti-aging attributes as does collagen. As long as consumers, whether logically or not, attach value to the label “collagen,” the labels distort the available information in the market and gives a price premium to the product.

The court accepted plaintiffs’ expert Dr. Fetzer’s opinion that the amino acids weren’t “collagen amino acids.” This was not about equivalence but about origin. He opined that, even if there were some similarities between the vegetable amino acids in the products and real collagen, calling the amino acid solution within the products as “collagen” or “collagen amino acids” is “analogous to stating that a collection of the 26 letters of the alphabet in approximate proportions to those of Shakespeare’s Hamlet mean that those letters must have really been from a text of Hamlet.”

To rebut this chemist’s opinion, defendant offered the opinions of a dermatologist, but they weren’t supported by the record. Her opinion as to the products’ overall efficacy was only relevant to the issue of damages, not falsity or deception. Her interpretation of what “Collagen + C” conveys was not relevant to the reasonable consumer test (and also tended to support plaintiffs anyway). However, to the extent that defendant could show that reasonable consumers interpret the term as meaning that the product boosts collagen rather than containing collagen, her opinion would be relevant to show that was true. But her opinion that the supposed vegetable collagen was equivalent to actual hydrolyzed collagen was excluded; she was not a chemist, has not researched equivalency of hydrolyzed solutions or plant protein hydrolysis, and didn’t have expertise in chemical industry standards for equivalency.

However, the court didn’t exclude her opinions as biased just because she was an endorser and user of the products.

Both sides offered surveys; ordinarily, the court would consider them both admissible because the objections went to the weight of the evidence. But the defendant’s survey and its objections to plaintiffs’ survey were based on the excluded opinions regarding the chemical composition of the products. Defendant’s view of the facts — that it is accurate to call its solution “plant-based collagen amino acids” — was explicitly rejected by the only expert who is a qualified chemist and was otherwise unsupported by any admissible, scientifically-sound evidence. Saying that a product has “plant-based collagen amino acids” is not the same as saying it has “the equivalent” or a “synthetic” version of collagen. It was like arguing that watches made in Japan can be sold with a label “Made in the USA,” just because the watches are just as effective as those made in the USA. “By saying amino acids are ‘collagen’ amino acids, Defendant is representing that the amino acids are derived from collagen. Otherwise, what makes the amino acids ‘collagen amino acids’?” Not any amino acid in collagen is a “collagen amino acid,” at least by the admissible testimony and common sense. “One cannot claim something has water in it just because it has some amount of hydrogen.”

But the Ninth Circuit has instructed courts to be very generous with consumer surveys. Still, there is Daubert, and “the low bar imposed on consumer surveys has been described in contrast to novel scientific theories,” but here the survey was the vehicle for introducing such a theory. Thus, defendant’s survey expert’s assumption that “plant based collagen amino acids” exist and, moreover, that this full phrase appeared on the products, “deeply infects the results of her survey and would confuse the issues for any jury.”

Defendant has not shown by admissible evidence that what “collagen” means is up for any real scientific debate. While consumers and laypersons may not have a scientific understanding of where collagen comes from – the question “what is collagen?” has but one accurate answer, and more importantly, is not the issue in dispute at least on the issue of falsity/deception.

Defendant challenged plaintiffs’ survey on various grounds. The survey used respondents who had purchased personal care and beauty products in the last 6 months and asked them whether they understood the product labels to mean that the products contained collagen. He then asked whether, they would be more or less satisfied with their purchase, or more or less likely to buy it again, after learning that the products contained no collagen and only contained amino acids. He also asked the respondents whether, after learning that the product contained no collagen and only contained amino acids, they would be more or less likely to purchase the product again. The expert concluded that over 95% of respondents understood the front label to mean that the products contain collagen, and 51.7% of respondents indicated that they would be “much” or at least “somewhat less satisfied” if they learned otherwise. This adequately tested deception and materiality, even if it didn’t test reliance.

Defendant argued that the respondents weren’t representative because its consumers are high-end, sophisticated product purchasers and therefore the population was non-representative. But it wasn’t clear why that would be a problem, given that more sophisticated shoppers “are likely more aware of, and perhaps specifically desire, the benefits of collagen products,” so this just went to weight rather than admissibility.

Meanwhile, the central question in defendant’s survey was:

Q13. Based on your understanding of the product, which of the following, if any, describes what C + Collagen means? 

(Select all that apply)

1. Product contains Vitamin C which increases collagen

2. Product contains animal collagen

3. Product contains plant-based collagen amino acids

4. Something else (Please specify): ___ 

5. None of these [EXCLUSIVE]

6. Don’t know / unsure [EXCLUSIVE]

Defendant’s expert concluded that “the majority of purchasers [surveyed] understand that C + Collagen means the product contains Vitamin C” (49.7% selected “Product contains Vitamin C which increases collagen). And the “next most common interpretation of C + Collagen was that the product contains “plant-based collagen amino acids” (37.2%), while only 26.4% indicated that C + Collagen meant that “the product contains animal collagen.”

The survey also asked materiality questions assuming that plant-based collagen amino acids were real, and purportedly found that 58.5% of consumers wouldn’t care—and of those who did care, only 3% would be less likely to buy plant-based products.

But nothing in defendant’s survey tested plaintiffs’ theory of the case: that the label conveys that the products contain both Vitamin C and collagen. “So, the fact that most individuals picked the answer choice indicating that they interpreted the label to mean Vitamin C boosts collagen is unsurprising given it is the only answer that contains both Vitamin C and collagen.  The fatal flaw was that the survey used the junk science that the court was supposed to keep out of the courtroom: “the questions introduce a substance that does not exist in the real world or even appear as a phrase on the Products’ packaging.” 

The survey “tested whether consumers understand where collagen comes from,” but that was different from the argument that “consumers value the word ‘collagen’ itself – whether consumers understand the science or not,” which allowed the defendant to charge inflated prices. Thus, the expert’s opinions and conclusions related to these questions were excluded as to falsity and materiality, as were her critiques of other experts based on their failure to test the concept of “plant based collagen amino acids,” The remaining aspects of the report (such as the reliance questions/answers) were admissible.

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