AARP’s brief supports efforts to hold a dietary supplement manufacturer accountable for allegedly misleading claims and billing practices.
Supple, LLC, markets a dietary supplement beverage that it claims, via advertising and testimonials, will “completely reverse and halt the disease process” for any joint disease, including arthritis. All of Supple’s marketing is conducted via online ads and news-style television “infomercials” that make it appear there is sound scientific evidence supporting the marketing claims. Once a buyer agrees to purchase Supple, he or she is trapped in a subscription service that is difficult to cancel. The customer service representatives for the company follow carefully crafted scripts that encourage purchasers to use the product for a longer period of time before cancelling and subject those who cancel to telemarketing calls to get them to re-subscribe.
Consumers who purchased Supple filed a class action lawsuit against the company seeking recovery for misleading advertising and unfair and deceptive billing practices. They challenged Supple’s marketing claims, alleging that that research shows the ingredients in Supple are ineffective in treating joint diseases or arthritis.
Supple opposed certification of the class, arguing that individuals are each required to prove that they relied on the allegedly misleading advertising in order to prove their claims. The consumers countered that all the purchasers were exposed to identical advertising and billing practices, and therefore, regardless of their individual situations, this lawsuit should proceed as a class action.
Class actions provide an efficient mechanism to address illegal corporate-wide practices that harm large numbers of individuals. The damage or loss suffered by each person may be a small amount, but it can amass into millions or even billions of dollars of ill-gotten gain for a company. Aggregating the claims of all the people harmed by the same practice is the only realistic way to challenge illegal business practices and provide relief for violations of the law. Where a company bilks each customer out of only a few — or even a few hundred — dollars, the amount of damages at stake usually will not justify the time, expense, and stress of bringing a private lawsuit. Moreover, a legal challenge raised by an individual is unlikely to unearth sufficient information to prove violations of law that require expert analysis and involve complicated factual and legal claims: companies would claim that providing such information in discovery would unduly burden them compared to the value of the legal claim. In any event, attorneys competent to successfully litigate complicated claims are unlikely to agree to represent individuals to challenge such practices because the cost of representation would far exceed any possible award even if the lawsuit is successful.
AARP Foundation Litigation attorneys filed AARP’s friend-of-the-court brief in the case, arguing that class certification is proper to challenge the marketing and billing practices of Supple. The brief outlines the sophisticated and misleading advertising efforts, including news-style “infomercials” and testimonials, used to prey on older consumers, who disproportionately suffer from disabling arthritis and other degenerative joint disorders. Viewers may believe that the results described in the testimonials are typical and that the infomercial is presenting scientifically proven findings that are being reported by independent, credible news organizations. The brief notes that such methods are particularly effective at reaching older people who, statistically, spend more time than any other segment of the population watching television. Finally, the brief discusses that contrary to what most people may believe, there is little to no government oversight or regulation over dietary supplements: they have not been approved by the Food and Drug Administration and have not been independently tested to ensure effectiveness or even quality. Supplements have even been found in some cases to contain none of the ingredients listed on the label.
Marketing trends that capitalize on the health-related concerns of the burgeoning population of older people are highly sophisticated, and particularly permeate the dietary supplement industry. Older people often have multiple chronic health conditions, increasingly live longer lives, and are anxious to resist negative effects of aging. Many people who use dietary supplements assume, incorrectly, that the products being sold in the United States are regulated and have been tested for safety, effectiveness, and quality when, in fact, that is not the case.
What’s at Stake
Increasingly sophisticated marketing techniques that make false health-benefit claims in order to prey on people’s desire to live a healthy, pain-free life prolongs suffering and delays effective treatment of medical conditions. In addition to siphoning off precious financial resources without returning the promised benefit, they can increase medical expenses and social isolation, and reduce income. Utilizing unfair and deceptive billing practices that trap older people into making repeat purchases magnifies the harm. Consumers subjected to such misleading marketing and billing schemes should have an effective, efficient means to challenge and seek redress for such practices: a class action lawsuit.
Cabral v. Supple is pending before the U.S. Court of Appeals for the Ninth Circuit.