Tuesday, June 4, 2019
Page 1
Ninth Circuit:
Consumer Can’t Seek to Enjoin Ads for ‘Worthless’ Product
If Product Is Valueless, Judges Reason, Plaintiff Won’t Buy It Again, Meaning Lack of Standing
By a MetNews Staff Writer
A plaintiff who describes a product as “worthless” lacks standing to seek an injunction against the manufacturer based on deceptive advertising, the Ninth U.S. Circuit Court of Appeals held yesterday, affirming the dismissal with prejudice of a putative class action.
A three-judge panel, in a memorandum opinion, quoted last year’s decision in Davidson v. Kimberly-Clark Corporation as saying that to seek such relief, it must be alleged that “the consumer may suffer an ‘actual and imminent . . . ’ threat of future harm.”
The opinion says:
“As the district court reasoned, ‘a plaintiff certainly will not purchase a worthless product in the future.’ ”
The judge it quoted is Cormac J. Carney of the Central District of California. He presided in an action brought by Min Sook Shin against a Umeken USA, Inc., a company that imports and distributes Umeken-brand Japanese dietary supplements.
At oral argument in Pasadena on May 15, Circuit Judge Andrew Hurwitz pressed Shin’s attorney, Juan Hong, for an acknowledgement that claims about the Umeken products on a third-party’s website—“Famous Herbs”—cannot be attributed to the defendant. Hong insisted that the statements emanate from Umeken.
Pomegranate Balls
Among the statements is this advisement on famousherbs.com as to Umeken Pomegranate Zakuro Balls With CoQ10:
“Who should take Zakuro Balls?
“Women entering menopause, those who have skin troubles, constant fatigue, mood changes, and those experiencing menopausal symptoms, such as hot flashes, irregular menstruation, decrease in sexual appetite, and insomnia.*”
The asterisk, Hong noted, references the source: “Umeken USA information booklet, ‘Nature is a Healer’, p.33.” The lawyer said:
“Plaintiff, my client, alleged Pomegranate CoQ10-Ex did not remove her fatigue, mood changes, and insomnia.”
Judges Reject Contention
The memorandum opinion declares:
“The alleged Pomegranate Balls CoQ10 ‘disease’ claims appear not on Umeken’s website but on a third-party website. Shin attempts to tie Umeken to the third-party website, but her allegation that the appearance of Umeken’s name, address, and the title of an Umeken ‘information booklet’ on the third-party website means that Umeken is responsible for statements on the website is implausible.”
Another Umeken product targeted by Shin was C-Balance, a vitamin C product derived, in part, from lemons. According to the Famous Herb website:
“Lemon, a natural vaccine, is rich in vitamin C and citric acid and is known to help minimize wrinkles and spots on your skin.”
Permissible Statements
The opinion says these are not “unlawful ‘disease’ representations” but, rather, “permissible ‘structure/function’ statements,” adding:
“That skin cancer or dermatological disease could cause skin spots does not transform these statements into disease claims.”
The opinion also says Shin improperly alleged a breach of warranty under the federal Magnuson-Moss Warranty Act based on false written claims. Written warranties, it sets forth, are governed by the Food, Drug, and Cosmetic Act.
In addition to Hurwitz, who did most of the questioning, as he customarily does, were Circuit Judge Kim Wardlaw and District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation.
The case is Min Shin v. Umeken USA, Inc., No. 17-56767.
Copyright 2019, Metropolitan News Company