Judge Denying Summary Judgment Promises Demonstration of Challenged Ad Claims for Jurors

Advertising Law

A putative class action challenging advertising claims for skin care products will move forward after a California federal court judge denied the defendants’ motion for summary judgment.

Plaintiffs Kari Miller and Samantha Paulson sued the defendants, accusing them of making false claims about the capabilities of certain of their skin care products. Plaintiff Paulson alleged that she saw the words “bio repair,” “rejuvenates” and “regenerates,” which led her to believe that the defendants’ Rose Stem Cell products might help the appearance of her facial scar. Plaintiff Miller alleged that she bought the defendants’ Water Drench product based on claims that the hyaluronic acid in the product was capable of exceptional water retention and therefore hydration.

The defendants moved for summary judgment, but U.S. District Judge William Alsup largely denied the defendants’ motion.

Judge Alsup determined that there were genuine disputes of material fact because some reasonable consumers might interpret claims for the Rose Stem Cell products as “mere puffery,” “but others could sensibly conclude that rose stem cells actually repair human skin.”

As for the defendants’ Water Drench products, the defendants promoted the line by claiming that one of its ingredients, hyaluronic acid, “attracts and retains up to one thousand times its weight in water from moisture in the atmosphere.” Although Judge Alsup noted that the use of “up to” softened the claim, he stated that the “plain focus of the ad was one thousand times its weight in water.”

“[R]easonable consumers are not ‘expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box,’” Judge Alsup wrote. “So too here. Subtle qualifications do not overcome the thrust of the ad. A jury could find that, based on the ad, reasonable consumers would expect that hyaluronic acid absorbs and retains about one thousand times its weight in water.”

The plaintiffs offered proof of the falsity of the challenged claims with a declaration from an organic chemist who testified that rose stem cells in a topical cosmetic are ineffective because plant cells don’t regenerate in human skin, and that skin barriers and the immune system prevent any penetration of topical stem cells.

Turning to the Water Drench claims, the expert characterized the “one thousand times its weight” claim as “incredible on its face” and “entirely unsupported by science,” citing peer-reviewed and published findings of other researchers.

This evidence was sufficient to create a genuine dispute of material fact, allowing the plaintiffs to survive summary judgment and move the case forward, the court concluded.

“Our jury will look forward to an in-court demonstration in which a certain amount of hyaluronic acid is placed in a beaker, one thousand times that weight in water is placed in another beaker, and the contents are combined, all watching to see if all the water will be absorbed,” Judge Alsup wrote. “Both parties’ experts would be well advised to prepare for such a demonstration.”

To read the order in Miller v. Peter Thomas Roth LLC, click here.

Why it matters: Between their allegations of deceptiveness and proffered evidence that the challenged claims were false, the plaintiffs created a genuine dispute as to the truthfulness and misleading nature of the defendant’s claims, the court found, setting the stage for an in-court demonstration of the claims.

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