I have an article published in this month’s Nutritional Outlook that discusses our recent big win for energy drink maker Celsius in a class action filed against it in California state court.
My article discusses class actions challenging advertising and labeling claims for dietary supplements and food products in which companies are accused of making product claims that are unfair or misleading to a large group of consumers. I note that in these cases consumer experiences with a product and its claims may differ greatly and, as a result, individual lawsuits, instead of class actions, may be more appropriate.
I argue in favor of an individualized approach to cases over deceptive claims. In Celsius, the court recognized that this plaintiff could never prove whether the Celsius supplement product’s performance claims are true or not. Since this was an essential element of his claim, he lacked standing to show how he was damaged, and the class action case was dismissed.
As I have said elsewhere, I believe that we are seeing the beginning of a trend toward more individualized treatment of cases involving deceptive claims, and away from class actions. The defense strategy companies adopt is critical and must focus the court on the plaintiff’s proof.
The decision in Fletcher v. Celsius is reprinted below.
[ipaper id=202387226]
About Joel Rothman
Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.
Mr. Rothman – Very informative article. I was considering addressing the same topic from a scientist’s perspective, but your take from the legal aspect of view is more to the point.
Wouldn’t the key point – that because responses to a dietary supplement are not uniform, hence negating the idea of their being a “class” of similarly defrauded individuals, also apply to drugs?
Would the case be stronger if there were no positive results from randomized, controlled trials such as mentioned in the Celsius example? How about a mix: say four negative trials and one positive?
Lastly, for subjectively assessed symptoms, such as pain or mental state, there is a known placebo effect in the range of 30-40%. If a hypothetical product for headache relief had no active ingredients whatsoever, yet 40% of users claimed improvement, would this hinder succeeding with a class action lawsuit?