January 22, 2019

January 22, 2019

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Ninth Circuit Affirms Jury Verdict In Favor of Homeopathic Remedy for Flu-Like Symptoms

On November 8, 2018, the Ninth Circuit affirmed a jury verdict in a consumer class action deceptive advertising case in favor of Defendants Boiron Inc. and Boiron USA, Inc. (together, “Boiron”), the sellers of a homeopathic treatment for flu-like symptoms called Oscillococcinum (“Oscillo”).  Although the Ninth Circuit’s memorandum decision is marked “Not for Publication” and therefore is non-precedential under Ninth Circuit rules, the decision is still worth noting, as jury verdicts in class action false advertising cases are rare.

According to the appellate briefs, Oscillo’s active ingredient is a compound (extracted from the heart and liver of the Muscovy duck for those foodies in our readership) that is subjected to a homeopathic dilution process.  The diluted compound is then sprayed onto specially-manufactured granules.  Plaintiff argued that, due to the homeopathic dilution process, Oscillo was essentially “water sprayed on sugar,” which could not provide the relief from flu-like symptoms that Boiron advertised.  Plaintiff claimed that Boiron had therefore violated two California deceptive advertising statutes, the Unfair Competition Law (“UCL”) and Consumers Legal Remedies Act (“CLRA”).

At the conclusion of a one-week trial in the Central District of California, the jury found in Boiron’s favor that its representations that Oscillo relieves flu-like symptoms were not false.  On appeal, the Ninth Circuit affirmed, finding that the jury verdict did not constitute plain error because Boiron presented sufficient evidence from which the jury could have concluded that Oscillo actually works against flu-like symptoms.  This was a “battle of the experts” for the jury, the court wrote, that could not be relitigated on appeal.  And the jury appeared to have believed Boiron’s expert, clinical studies, and anecdotal evidence more than it believed the plaintiff’s expert, according to the court.

The Ninth Circuit further noted that in explicitly finding that Boiron’s claim that Oscillo treated flu-like symptoms was not false, the jury must have implicitly rejected Plaintiff’s argument that Oscillo was merely a sugar pill or water sprayed on sugar.  Nor did Plaintiff offer a theory of how Boiron’s representations could be false if the product did indeed treat flu symptoms.

The case is Christopher Lewert v. Boiron Inc., et al., No. 17-56607 in the Ninth Circuit.

© 2019 Proskauer Rose LLP.

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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Tiffany Woo, Proskauer Rose, Litigation Department, Columbia University, Yale,
Associate

Tiffany Woo is an associate in the Litigation Department.

  • Columbia Law School, J.D., 2015

    Journal of Law and Social Problems, Executive Design & Layout Editor and Note Editor

  • Yale University, B.A., 2012

    Yale Daily News, Staff Reporter and Staff Designer

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