Antitrust Law Daily Wrap Up, ADVERTISING—N.D. Cal.: Substantiation claims against dietary supplement could not be brought in private action, (Nov 3, 2014)

By Linda O’Brien, J.D., LL.M.

A consumer’s complaint against an Internet retailer of dietary supplements for the marketing and labeling of its supplement to boost human growth hormone alleged a substantiation claim, not a claim for false or misleading advertising, and could not be brought as a private action under the California Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA), the federal district court in San Francisco has held. Thus, the defendant’s motion to dismiss was granted (Kwan v. SanMedica International, LLC, October 30, 2014, James, M.).

SanMedica International manufactures, markets, and sells SeroVital, a dietary supplement marketed to boost human growth hormone (HGH). Serena Kwan purchased SeroVital after viewing advertisements in magazines, on television, and on the company website, which represented that SeroVital (1) provided significantly increased HGH levels; (2) was clinically tested; and (3) increased HGH levels were associated with youthful skin, lean muscles, and elevated energy production.

Kwan filed suit against SanMedica, alleging violations of California’s UCL and CLRA. SanMedica moved to dismiss the complaint.

In an action for false advertising under the UCL and CLRA, the plaintiff bears the burden of proving that the defendant’s advertising claim was false or misleading, the court explained. Individuals may not bring suit under the UCL or CLRA, alleging only that the advertising claims lack substantiation. Since there is no private right of action for a substantiation claim, a plaintiff may only bring claims under these Acts for false and misleading advertising and must provide adequate factual bases for such allegations.

The plaintiff’s assertion that SanMedica falsely advertised that SeroVital was clinically tested to produce youthful skin, lean muscles, and elevated energy production was rejected. The court noted that the defendant merely represented that peak HGH levels were associated with those benefits and it was irrelevant that the study upon which the advertising claims relied on did not test for the presence of those benefits.

The court also rejected the plaintiff’s contention that the sole study upon which the defendant based its clinically-tested growth hormone benefit representations was not methodologically sound and likely to deceive consumers. The plaintiff’s argument described a substantiation claim, not a false advertising claim, and therefore could not be brought as a private action. Looking at the complaint as a whole, the court determined that the plaintiff’s allegations did not demonstrate that the defendant’s advertising claims were false. None of the authorities cited by the plaintiff actually referred to SeroVital, and statements attributed to the New England Journal of Medicine that were 11 to 20 years old were irrelevant, as they made before the product was created, the court concluded.

The case is No. 14-cv-03287-MEJ.

Attorneys: Manfred Patrick Muecke (Bonnett, Fairbourn, Friedman, & Balint, PC) for Serena Kwan. Christopher B. Sullivan (Price Parkinson & Kerr, PLLC), and Rollin Bernard Chippey, II (Morgan Lewis & Bockius) for SanMedica International, LLC.

Companies: SanMedica International, LLC

Cases: Advertising CaliforniaNews