Class Action and Product Insights for Your Business
July 15, 2015 - False Advertising

Rescue Remedy Decision Confirms that CLRA Notice Requirement Has Real Teeth

A recent decision from the Southern District of California demonstrates the potential narrowing effect of a failure to strictly comply with the notice requirement for claims for damages under California’s Consumers Legal Remedies Act (CLRA), Cal. Civ. Code § 1750 et seq. In Ruszecki v. Nelson Bach USA Ltd., No. 12-cv-495 (S.D. Cal. June 25, 2015), the plaintiff alleged violations of the CLRA (along with other claims) based on Nelson Bach’s marketing and sale of various “Rescue Remedy” homeopathic products. According to the plaintiff, Nelson Bach falsely represented these products as “natural” even though they contain certain artificial or synthetic ingredients and also falsely represented the products as having health benefits and having been proven effective.

Nelson Bach moved to dismiss the CLRA claims on the basis of plaintiff’s failure to comply with the CLRA’s notice requirement, among other things. That requirement obligates claimants to provide notice of the particular CLRA violation at issue prior to suing for damages so that the alleged violator has the opportunity to cure the problem. See Cal. Civ. Code § 1782(a). Nelson Bach argued that because the plaintiff was required to provide notice of the “particular alleged violations” of the CLRA, the CLRA claims should be dismissed to the extent they were based on any products or alleged misrepresentations that were not explicitly mentioned in the plaintiff’s pre-suit demand letter. That letter did not reference the allegedly false “natural” representations and stated only that “all of YOUR products, not only Original Rescue Drops, have no efficacy beyond a placebo.”

The Southern District ruled in favor of Nelson Bach, holding that a CLRA claimant “must provide notice for each particular product the plaintiff is seeking damages for, even when the products are substantially similar [and] must notify the defendant of each alleged violation of the CLRA.” Accordingly, the court dismissed the CLRA claims with prejudice to the extent they were based on products other than Nelson Bach’s Original Rescue Drops or on alleged misrepresentations other than those related to efficacy.