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Stuart E. Scott | Oct 28, 2014

Buyer Beware: When is an Ad False Advertising?

The Ninth Circuit has ruled on a number of false advertising case decisions which protect sellers that make unsubstantiated claims about their products. This restricts a consumer’s ability to sue over false advertising unless they can prove that the company knowingly made false statements as opposed to statements the company had no basis to believe were true. The law distinguishes between lies of commission vs. lies of omission with the former being illegal and the latter inconsequential.

In Johns v. Bayer Corporation, 2013 WL 1498965 (S.D. Cal. April 10, 2013) consumer’s alleged Bayer’s advertisements for products, One A Day Men’s Health Formula and One A Day Men’s 50+ Advantage vitamins, as false and misleading.

( Both products include labeling that claims their product supports prostate health. One of the products claims that it may reduce the risk of prostate cancer due to the antioxidants lycopene and selenium contained in the product, despite Bayer not having credible scientific evidence that supported their claim. (

The Ninth Circuit, Southern District of California dismissed the case, due to “lack of substantiation”, as well as citing the “strength of Bayer’s evidence as irrelevant” because plaintiffs could not prove through scientific evidence that the ingredients in the products did not provide the advertised claims.( That is to say the consumer’s couldn’t catch Bayer in an outright lie. The court held Bayer didn’t have to prove that its statements were actually true.

Courts are increasingly recognizing the lack of substantiation defense to false advertising claims. This means consumers will be paying premium prices for products that tout their superior quality and characteristics even though no evidence exists to support the sellers’ claims. Outside California, consumers are finding it increasingly difficult to protect themselves against deceptive advertising. In the Gerber Probiotic Sales Practice Litigation (2013 Case No. 12-cv-00835, D.N.J) consumers alleged Gerber’s advertisements for its, Good Start Protect Infant Formula and Good Start Protect Formula for 9 through 24 months (“Good Start”) and DHA & Probiotic Cereal – Single Grain Oatmeal and Rice varieties, were falsely advertised. ( The products labeling claimed to possess nutritional qualities that are equivalent to breast milk and the only formulas that provide immune system benefits of probiotic bacteria that will strengthen and support the immune system of young children. However, numerous studies show that the products do not and cannot provide immune system health benefits that Gerber claims.

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