District Court Sacks Ginkgo Biloba False Advertising Case

GinkgoOn February 2, 2017, the Central District of California terminated a false advertising lawsuit against Schwabe North America, Inc. and Nature’s Way Products, LLC (Defendants), based on allegations that the companies misrepresented the cognitive benefits of two Ginkgo biloba products.  Sonner v. Schwabe North America, Inc. et al., Case No. 15-1358-VAP (C.D. Cal., filed July 7, 2015).  The court granted Defendants’ motion for summary judgment, finding that Plaintiff Kathleen Sonner (Plaintiff) had failed to establish that the claimed memory benefits were provably false.

Background of the Case.  On July 7, 2015, Plaintiff Kathleen Sonner filed a class action against Defendants, alleging that the companies had falsely advertised that Ginkgold and Ginkgold Max products had cognitive benefits, including mental sharpness, memory, and concentration.  The complaint alleged claims under the Wisconsin Unfair Trade Practices Act (UTPA), California’s Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA), and breach of express warranty.  Ms. Sonner sought to represent a class of consumers who had purchased the Ginkgold and Ginkgold Max products in the United States.

Plaintiff Had Standing to Pursue Claims for Products Not Purchased.  Defendants argued that Plaintiff lacked standing to pursue claims as to the Ginkgold Max product, which Plaintiff never purchased.  The court disagreed, finding that she had standing to assert claims for unnamed class members because the two products were “essentially identical.”  The only purported difference between the products—the level of active ingredient EGb 761—was irrelevant since the dispute was whether any amount of EGB 761 provided cognitive benefits.

Plaintiff Failed to Show the Cognitive Benefits Advertisements Were False or Misleading.  Defendants argued that Plaintiff’s UCL and CLRA claims were barred because they were “lack of substantiation claims,” which may not be brought by private individuals.  But the court found that Plaintiff did more than claim that Defendants lacked substantiation for their advertising claims; she provided evidence of scientific reports concluding that Ginkgo biloba does not appear to provide cognitive health benefits.  As such, the relevant inquiry was whether a reasonable juror could find that Plaintiff had proven that Defendants’ advertising claims were false or misleading.

To resolve that inquiry, the court analyzed each side’s proffered evidence, including quantitative meta-analyses and clinical studies, in what the court called the “Battle of the Experts.”  Plaintiff criticized Defendants’ reliance on less recent studies and criticized the fact that Defendants’ studies conflicted with what Plaintiff claimed was the most authoritative source of review and synthesis.  But the court found that merely taking issue with the strength of the studies was not enough to prove their falsity.

Plaintiff also argued that Mullins v. Premier Nutrition Corp., 178 F. Supp. 3d 867 (N.D. Cal. 2016) compelled her recovery.  In that case, the plaintiff brought almost identical UCL and CLRA claims against a defendant that had advertised the health benefits of its product.  The court in Mullins found that plaintiff had met her burden to establish that a reasonable jury could find that defendant’s claims were provably false by offering principled, supported critiques of the studies relied upon by defendants.  The Plaintiff in Mullins was also entitled to recover under a theory that the representations were misleading because a reasonable juror could conclude that the “vast weight of the competent evidence establishe[d] that th[e] health claims [were] false.”

The court found that Mullins did not support recovery.  Unlike in Mullins, the Plaintiff failed to offer “principled, supported critique” of “each of the studies finding beneficial effects.”  Nor did Plaintiff challenge the methodology, structure, or independence of any of the studies.  As such, Plaintiff failed to meet her burden of proving falsity.

For these reasons, the court held that Defendants were entitled to summary adjudication as to Plaintiff’s UCL and CLRA claims.  The court also granted Defendants’ motion with regards to Plaintiff’s UTPA claim and breach of express warranty claim finding that Plaintiff had failed to identify any express warranty.

Takeaway.  Companies should carefully consider which scientific evidence they use to support defenses in false advertising cases, and should be on the lookout for outside studies that may challenge the methodology, structure, or independence of proffered scientific evidence.