Appeals court rejects false-advertising summary judgment in favor of nutritional supplement sellers

By Gabriel Neves | Jan 1, 2019

SAN FRANCISCO — A California customer who sued the seller of a nutritional supplement claiming it falsely advertised the product has obtained a victory in court.

U.S. Appeals Judges Kim McLane Wardlaw, Jacqueline H. Nguyen and John B. Owens, on the panel of the U.S. Court of Appeals for the Ninth Circuit, issued a nine-page per curiam ruling on Dec. 26 reversing the U.S. District Court for the Central District of California's decision in the lawsuit filed, by Kathleen Sonner against Schwabe North America Inc. and Nature's Way Products.

Sonner sued Schwabe and Nature's Way alleging that nutritional product Ginkgold was mislabeled as capable of improving cognitive functions, when in reality those benefits were not proven to be delivered by the product.

As stated in the ruling, "On July 7, 2015, Sonner filed a class action complaint against Schwabe for violations of California’s" Unfair Competition Law (UCL), and of the Consumer Legal Remedies Act (CLRA), claiming that "the operative ingredient in both products, the EGb 761 variety of Ginkgo biloba extract, does not actually have any of the advertised cognitive benefits."

Schwabe filed for summary judgment on Sept. 14, 2016, with the motion granted on Feb. 2, 2017. The district court stated in the motion, per the ruling, that "both sides have produced expert testimony and scientific research in support of their claims,” but it nevertheless granted Schwabe summary judgment on the ground that Sonner failed to critique the expert testimony and each of the scientific studies proffered by Schwabe," and that because Sonner fell short in "challenging the methodology, structure, or independence of [Schwabe’s] studies,” her evidence is “insufficient to allow a reasonable juror to conclude that there is no scientific support for [Schwabe’s] claims.”

In its opinion, the appeals court panel noted that "if the plaintiff’s evidence suggests that the products do not work as advertised and the defendant’s evidence suggests the opposite, there is a genuine dispute of material fact for the fact-finder to decide," dismissing the lower court's argument.

The case was remanded back to the district court for further proceedings.

U.S. Court of Appeals for the Ninth Circuit Case number 17-55261

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