Professor Rebecca Tushnet on her 43(B)log has an interesting and thorough discussion today of a recent court decision in a false advertising case, Korolshteyn v. Costco Wholesale Corp. (S.D. Cal. Aug. 23, 2017):
Costco’s TruNature Gingko labels represent that the product “supports alertness & memory,” that “Gingko biloba can help with mental clarity and memory,” and that “[i]t also helps maintain healthy blood flow to the brain to assist mental clarity and memory, especially occasional mild memory problems associated with aging.” Plaintiff alleged that these were false or misleading under the UCL and CLRA. Relying on In re GNC Corp., 789 F.3d 505 (4th Cir. 2015), the court here found that this was an impermissible lack-of-substantiation claim, and that therefore a private plaintiff can never prove falsity “when a defendant offers scientific evidence and admissible expert testimony supporting an advertising claim about the efficacy of the product in question.” To prove falsity, all reasonable experts in the field must agree that the representations are false. The court found that California would follow GNC, because no state court cases have rejected it, but I doubt that….
What the GNC line of cases is really saying is that courts will not engage in the very process they’re constituted to engage in if a consumer protection case requires a factfinder, as the court makes clear when it says “under California law a Plaintiff cannot maintain a false advertising claim when the defendant offers admissible expert testimony and scientific evidence supporting the advertisement in question.” That is, the court will only look at one side of the evidence; I would call that not very judicious. And by the way, this formulation means that in fact there is a substantiation requirement under California law—just one in which the quality of the substantiation is judged by a minimal standard, that of admissibility. When a rationale for a rule makes the rule a failure on its own terms, there is something deeply wrong.
The full blog post is here.