Tuesday, January 21, 2003
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C.A. Rules Aleve Ads Not Deceptive to ‘Reasonable Consumer’
By KENNETH OFGANG, Staff Writer
A San Francisco Superior Court judge correctly applied a “reasonable consumer” standard in ruling that ads for the pain reliever Aleve did not mislead consumers into thinking they could use the product without fear of gastrointestinal side effects, the First District Court of Appeal ruled Friday.
Div. Two upheld Judge Isabella H. Grant’s decision to grant judgment in favor of Procter and Gamble Co. and others involved in the manufacture and distribution of Aleve, following a 13-day bench trial two years ago.
In ruling for the defendants, the appellate court jurists rejected the position of Attorney General Bill Lockyer, who filed an amicus brief supporting plaintiff Zion Lavie, that advertising should be considered deceptive under Business and Professions Code Sec. 17200, the unfair competition law, if it tends to mislead the “least sophisticated consumer.”
Lavie alleged that after taking Aleve in mid-December 1994 for relief of cold symptoms, he was hospitalized for a bleeding ulcer. He produced evidence linking the pain reliever to his condition, and explained that his ulcer had been previously inactive for 12 years, that he had been advised not to take aspirin, and that he thought Aleve was safe because it was advertised as being “gentler to your stomach lining than aspirin.”
He sought restitution for consumers in the amount of all sales of Aleve in California, potentially totaling $104 million, as well as corrective advertising and treble damages.
Inconsistent Position
Presiding Justice J. Anthony Kline, writing for the Court of Appeal, noted that the attorney general’s position was inconsistent with that taken by the plaintiff, who agreed with the defendants that the “reasonable consumer” test applied. But he explained that an appellate court may rule on an issue raised for the first time by an amicus, rather than require the amicus to “take the case as he finds it,” where the amicus has a significant stake and ignoring the issue might result in a bad precedent.
While the unfair competition and false advertising laws are designed to protect consumers, including the “unwary” or “trusting,” no state or federal court has held that California law implies a general “unsophisticated consumer” test as to what is deceptive, Kline said.
He distinguished Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, which allowed a suit to be brought on behalf of young children against a cereal manufacturer whose advertisements allegedly misrepresented that eating its heavily sugared products was healthy and otherwise beneficial.
The presiding justice explained:
“Where advertising is aimed at a particularly susceptible audience, such as the preschool children targeted by the advertisements in Committee on Children’s Television— its truthfulness must be measured by the impact it will likely have on members of that group, not others to whom it was not primarily directed. We also recognize that an advertisement may be designed to appeal to specific groups of consumers, although it is ostensibly directed to the public at large. Where the plaintiff contends that a more vulnerable subgroup is the true target of such an advertisement, a question of fact is presented, which the trial court must resolve.
“However, unless the advertisement targets a particular disadvantaged or vulnerable group, it is judged by the effect it would have on a reasonable consumer.”
In an unpublished portion of the opinion, Kline said there was substantial evidence to support Grant’s decision under the reasonable consumer test.
Expert Testimony
He cited expert testimony that use of Aleve is, in fact, less likely to result in gastrointestinal side effects than aspirin and that effects such as those reported by Lavie were rare. No reasonable consumer, Kline said, would have understood the commercials to be claiming that Aleve was “absolutely gentle” and guaranteed not to cause stomach distress under any circumstance.
Justice James Lambden concurred in Kline’s opinion, while Justice Paul Haerle concurred separately, castigating the attorney general’s position as “both troubling and startling.”
The “least sophisticated consumer” test, Haerle declared, has been rejected by every court that has considered.
“[T]he position adopted in those cases is consistent with common sense; the Attorney General’s position is not,” the concurring justice wrote. “That position would, I suggest, allow a section 17200 cause of action to the consumer who interprets literally the radio ads saying ‘Albertson’s is your store’ and goes to court when he is not given access to his local store’s daily receipts.”
The case is Lavie v. Procter & Gamble Co., A093393.
Copyright 2003, Metropolitan News Company