the Ninth Circuit affirmed a jury verdict in a consumer class action deceptive advertising case in favour 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 Although the Ninth Circuit’s memorandum decision is marked “Not for Publication” and therefore is non-precedential under Ninth Circuit rules, the decision is still worth noting, as jury verdicts in class action false advertising cases are rare.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.
If you actually read the court record, it says the opposite of what this article states, concluding that homeopathy is at best placebo.
Not judt Oscillo, which has cured many members of my family, but other homeopathic cures have succeeded for me, when alopathic medicine couldn’t help. In fact, I would say that homeopathic medicines have cured far more conditions than other healing arts – for me, anyway.
Thanks for posting. There have been a number of these lawsuits against homeopathic pharmacies. Pharma uses surrogates who they pay to file the lawsuits in an effort to harass the homeopathic pharmacies. Fortunately this was a win for the pharmacy, but it can’t be used as a precedent, so other lawsuits will follow.
Truth is always true. It can not be vanished by any conspiracy.