California-based U.S. District Court Judge Michael W. Fitzgerald has certified a class of consumers accusing the maker of the drink “Supple” of deceptively marketing the beverage by touting its ability to relieve joint pain. See Cabral v. Supple, LLC, No. 12-0085 (C.D. Cal. Feb. 14, 2013) (order granting motion for certification).
The named plaintiff has alleged that she bought Supple in reliance on the defendant’s claims that its “key ingredients” are “clinically proven effective, produce evidence-based solutions for joint problems, and provide fast relief from joint suffering caused by ailments such as arthritis.” Order at 1-2. A 7-week supply of Supple cost the plaintiff $94.95, plus shipping and handling, but it allegedly proved to be useless.
The certified class will consist of all people living in California who bought Supple since December of 2007. As is often the case in contested class certifications, the defendant argued that individual issues predominated, precluding certification. Additionally, the defendant argued that repeat purchases of Supple demonstrated satisfaction with the product and attendant claims about its clinical properties, rather than inducement due to the defendant’s misleading claims.
The court rejected both arguments and found that common questions predominated: “The truth or falsity of Supple’s advertising will be determined on the basis of common proof — i.e., scientific evidence that the Beverage is ‘clinically proven effective’ (or not) — rather than on the question whether repeat customers were satisfied or received multiple shipments of the Beverage because of automatic renewals.” Order at 7.
Notably, despite perhaps indicating some amount of consumer satisfaction, the fact of multiple purchases did not negate the posited link between the defendant’s representations about Supple’s curative properties and consumers buying it.