Private individuals may not bring an action demanding substantiation for advertising claims. Instead, pursuant to Cal. Bus. & Prof. Code § 17508, only prosecuting authorities may require an advertiser to substantiate its advertising claims.
Plaintiff argues at length both in her motion for class certification and in opposition to the summary judgment motion that Defendant’s claims regarding the general digestive and immune system health benefits of PCH are actually false because they lack proper scientific substantiation. However, the alleged lack of substantiation does not render claims false and misleading under the UCL or CLRA.
describe the role of a nutrient or dietary ingredient intended to affect the structure or function in humans or that characterize the documented mechanism by which a nutrient or dietary ingredient acts to maintain such structure or function.
Plaintiff cannot create a genuine issue of material fact regarding whether Defendant met the level of substantiation required under federal law by presenting opinions from experts who are not aware of the relevant regulatory standards.
The product didn’t work for me – OK, but “nothing on the PCH box, internal packaging, or advertisement represents to consumers that the product is intended to relieve diarrhea. The fact PCH did not relieve Plaintiff’s diarrhea does not mean a reasonable consumer would be mislead into believing it would work as Plaintiff suggests. The Plaintiff has failed to produce any evidence that the product does not work for the purposes for which it is advertised – to promote overall digestive health and to defend against occasional diarrhea and other gastrointestinal issues.” Id. at *24.
They didn’t tell me I had to take it continuously – But the packaging said: “Daily Probiotic Supplement” and the label directs that PCH is “to be taken Daily or Everyday to support digestive health.” So, “what additional material fact [did] Defendant [have] an affirmative duty to disclose?” The court agreed that plaintiff left that question unanswered. Id. at *27-28.
A different size bottle of PCH that I didn’t buy contained a statement that I didn’t rely on about scientific studies that I allege is misleading – The court’s conclusion is self-explanatory: “There is no evidence Plaintiff . . .ever saw the [statement]. Thus, the statement cannot form the basis of Plaintiff’s false advertising claim.” Id. at *30.