Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Cal.: Consumer proceeds with misrepresentation claims against Trigosamine marketer, (Mar 24, 2016)

By Greg Hammond, J.D.

A consumer produced sufficient evidence to demonstrate that the active ingredients in the supplements Trigosamine Maximum Strength and Trigosamine Fast Acting are incapable of the effects advertised, the federal district court in San Diego has concluded. Because a genuine issue of material fact therefore exists, a motion for summary judgment—filed by the defendant marketer and distributor of Trigosamine—was denied (Vasic v. Patenthealth, L.L.C., March 22, 2016, Bashant, C.).

Patenthealth, LLC marketed and distributed the two Trigosamine products, allegedly advertising that the active ingredient Glucosamine “helps build and maintain healthy, protective cartilage and joints and reduces joint discomfort,” and that the active ingredient Chondroitin Sulfate “promotes joint flexibility, lubrication, comfort, and range of motion.” The consumer plaintiff alleges that he purchased Trigosamine Maximum Strength based on the claims on the product’s label—that the product would “lubricate” joints, “relieve” pain, and “build” cartilage. Patenthealth moved for summary judgment on the consumer’s claims that Patenthealth violated California’s Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA).

Falsity. In support of its motion to dismiss, Patenthealth first argued that the consumer could prove the falsity of Patenthealth’s advertising claims. The court rejected this argument, finding that the consumer produced evidence that sufficiently demonstrated that Glucosamine and Chondroitin Sulfate was incapable of the effects advertised by Patenthealth such that there is a genuine issue of material fact. In particular, the consumer: (1) alleged that Patenthealth represented that Glucosamine “helps build and maintain health protective cartilage and joints, and reduces joint discomfort”; (2) provided studies that look at the effect of Glucosamine and concluded that it does not “relieve joint discomfort,” “lubricate joints,” and/or “build cartilage”; and (3) provided an expert who will testify that it is impossible for the ingestion of either Glucosamine or Chondroitin Sulfate in isolation, together, or with the ingredients found in the products at issue to have “any effect on cartilage or to contribute in any way to control” osteoarthritis symptoms.

UCL claim. Patenthealth next argued that the consumer could not prove his UCL claim because: (1) he could not prove damages due to Patenthealth’s 90-day money-back guarantee; (2) the class was not ascertainable as a matter of law because of Patenthealth’s money-back guarantee; and (3) the consumer could not prove any prong of the UCL.

None of the arguments were availing, according to the court. First, both parties acknowledged that the 90-day period expired long ago and the consumer never received a refund for his Trigosamine purchase. Second, the court found that although the proposed class—all individuals in California who purchased the products—may need to be narrowed, the issue was not ripe because no class-certification motion was currently pending. Lastly, the consumer could bring claims under all three prongs of the UCL because: (1) the consumer plausibly claimed that the CLRA was violated, allowing the consumer to bring a claim under the unlawful prong; (2) with regard to the unfair prong, the question of whether the harm from the business practice is greater than the utility of the practice or the practice violates public policy in this action is a jury question; and (3) the consumer presented evidence that Patenthealth’s statements concerning Glucosamine and Chondroitin Sulfate were not true and that, had he known these statements were not true, he would not have purchased the product, which was sufficient to bring a claim under the fraudulent prong of the UCL.

Standing. Lastly, Patenthealth asserted that the consumer lacked standing to bring UCL and CLRA claims because: (1) with regard to Trigosamine Fast Acting, the consumer never purchased that product or read the label; and (2) the consumer was asserting “lack of substantiation” claims, which could not be brought by private plaintiffs. The court rejected both arguments, first finding that the two Trigosamine products were similar in appearance and contained the same representations concerning Glucosamine and Hyaluronic Acid. Moreover, the consumer presented evidence to create a general issue of material fact as to the falsity of Patenthealth’s advertising representations. He was therefore asserting false claims and not “lack of substantiation” claims, the court concluded.

The case is No. 13-cv-849-BAS(MDD).

Attorneys: James R. Patterson (Patterson Law Group APC) for Dragan Vasic. D. Jay Ritt (Ritt, Tai, Thvedt & Hodges LLP) for Patenthealth, LLC and Arthur Middleton Capital Holdings.

Companies: Patenthealth, LLC; Arthur Middleton Capital Holdings, Inc.

Cases: Advertising StateUnfairTradePractices CaliforniaNews