Court Cuts Short Challenge To Zicam's "Clinically Proven To Shorten Colds" Claims

• Published date: 16 December 2021
• Subject Matter: Media, Telecoms, IT, Entertainment, Advertising, Marketing & Branding
• Law Firm: Proskauer Rose LLP
• Author: Mr Baldassare Vinti, Jeffrey H. Warshafsky and Jessica M. Griffith

In Yamasaki v. Zicam, LLC, Case No. 21-cv-2596 (N.D. Cal. 2021), Plaintiff alleged certain Zicam® cold remedy products were falsely advertised as "clinically proven to shorten colds." On this basis, Plaintiff sought to represent a putative class of California consumers for seven different Zicam products. Zicam, represented by Proskauer, moved to dismiss Plaintiff's amended complaint in its entirety. Judge Gilliam granted the motion, agreeing with Zicam that Plaintiff failed to state a claim for relief.

Under California law, a private litigant may not challenge advertising claims on the ground that the advertiser allegedly lacks substantiation for its claims. A private litigant must affirmatively allege that the defendant's advertising is false. For example, in the Ninth Circuit's precedential decision in Kwan v. Sanmedica Int'l, 854 F.3d 1088 (9th Cir. 2017), the Court expressly rejected the argument that "clinically tested," "clinically proven," or similar statements referring to the existence of studies to support an advertising statement should be subject to a different standard than other advertising statements.

In Yamasaki, the Court found that Plaintiff's amended complaint lacked any factual allegations supporting a reasonable inference that Zicam's "clinically proven" statements were false. While Plaintiff cited a variety of studies relating to zinc in her amended complaint, none tested a Zicam product, let alone found a Zicam product ineffective at shortening colds.

Plaintiff tried to overcome California's bar on lack-of-substantiation claims with two arguments, both of which the...