SlimFast products aren't "clinically proven," even if the SlimFast plan is, allowing false advertising claim to survive

McCracken v. KSF Acquisition Corp., 2023 WL 5667869, No. 5:22-cv-01666-SB-SHK (C.D. Cal. Apr. 4, 2023)

McCracken alleged that SlimFast food products were falsely advertised as “CLINICALLY PROVEN [ – ] LOSE WEIGHT & KEEP IT OFF” on the front of their packaging. It was undisputed that none of the products she purchased has been clinically tested or proven to cause consumers to lose weight or maintain weight loss, though KSF pointed to additional disclaimers on the back clarifying that the statements referred to KSF’s low-calorie “SlimFast Plan” rather than to the products themselves. The products say on the back: “For over 40 years, millions of Americans have lost weight and kept it off using SlimFast Original Meal Shakes, as part of the clinically proven SlimFast Plan. Clinical studies prove the SlimFast Plan helps you effectively lose weight, and you can see results in just one week!”

example of front package with "Clinically Proven: Lose weight and keep it off" claim

example of back with "Clinically Proven to Lose Weight Fast" caption with reference to SlimFast plan

: For over 40 years, millions of Americans have lost weight and kept it off using SlimFast Original Meal Shakes, as part of the clinically proven SlimFast Plan. 50 Clinical studies prove the SlimFast Plan helps you effectively lose weight ..."

Although the court dismissed claims for equitable restitution and disgorgement because McCracken didn’t show that adequate legal remedies were unavailable, the remaining usual California statutory claims survived.  (The case was later dismissed after an individual settlement.)

McCracken incorporated NAD and NARB decisions into the complaint. In 2021, NAD found, among other things, that “a reasonable consumer could take away the message that [Defendant’s] clinically proven claim refers to any product upon which it appears” and that “ ‘Clinically Proven to Lose Weight & Keep It Off’ conveys a clinically proven weight-loss and maintenance message about each individual SlimFast product.” Since this claim hadn’t been substantiated for the food products, but still “expressly and by implication conveys the message that the current products themselves have been clinically proven to allow consumers to lose weight and keep it off,” NAD recommended changing the ad. KSF appealed, and NARB affirmed in relevant part.

First, this wasn’t an impermissible private claim merely alleging lack of substantiation. Instead, plaintiff plausibly pled that the “clinically tested” claim was an affirmative misrepresentation as to the food products. “[A] reasonable consumer viewing the front of Defendant’s SlimFast products might assume that the claim ‘CLINICALLY PROVEN [ – ] LOSE WEIGHT & KEEP IT OFF’ refers to the product on which the claim is made rather than to a weight loss plan that is not mentioned on the front of the packaging and that does not in any way depend on consumption of the product being sold.” Even knowing the SlimFast plan existed wouldn’t inherently preclude a belief that defendant actually tested its own products as part of the plant. NAD/NARB’s agreement on this bolstered its plausibility. Indeed, even the fine print didn’t “necessarily dispel the impression created by the front label that the product itself has been tested; consumers might assume that Defendant’s tests of the SlimFast Plan involved the products being sold (as they apparently did for earlier products).”

Finally, McCracken did have standing to seek injunctive relief because she was still interested in buying.