West Case Update

Reasonable Consumer Standard Applied to Advertising in California

Description California appeals court held that the proper standard to apply to advertising is that of an ordinary consumer acting reasonably under the circumstances, not a least sophisticated consumer standard.

Topic Consumer Protection

Key Words Advertising; Misrepresentation; Reasonable Consumer Standard

C A S E S U M M A R Y

Facts Zavie, who had suffered from ulcers and had been told not to take aspirin, took the pain reliever Aleve, after seeing the claim "Aleve is gentler to the stomach lining than aspirin." After taking Aleve, Zavie had to be hospitalized with internal bleeding. He sued the maker, Procter & Gamble, for false advertising in violation of California law, requesting over $100 million in restitution for California consumers. The trial court held for P&G, finding the advertising was not misleading and was not likely to mislead a reasonable consumer. Zavie appealed.

Decision
Affirmed. For purposes of California law, a reasonable consumer need not be exceptionally acute and sophisticated. The courts need not use a "least sophisticated consumer" standard. An ordinary consumer, acting reasonably under the circumstances, is the appropriate standard to be applied in false advertising cases. California law is consistent with FTC interpretation of misleading advertising. The statement here was not likely to deceive reasonable consumers.

Citation Zavie v. Procter & Gamble Co., 129 Cal.Rptr.2d 486 (Ct. App., Calif., 2003)

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Reasonable Consumer Standard Applied to Advertising in California
Description	California appeals court held that the proper standard to apply to advertising is that of an ordinary consumer acting reasonably under the circumstances, not a least sophisticated consumer standard.
Topic	Consumer Protection
Key Words	Advertising; Misrepresentation; Reasonable Consumer Standard
C A S E S U M M A R Y
Facts	Zavie, who had suffered from ulcers and had been told not to take aspirin, took the pain reliever Aleve, after seeing the claim "Aleve is gentler to the stomach lining than aspirin." After taking Aleve, Zavie had to be hospitalized with internal bleeding. He sued the maker, Procter & Gamble, for false advertising in violation of California law, requesting over $100 million in restitution for California consumers. The trial court held for P&G, finding the advertising was not misleading and was not likely to mislead a reasonable consumer. Zavie appealed.
Decision	Affirmed. For purposes of California law, a reasonable consumer need not be exceptionally acute and sophisticated. The courts need not use a "least sophisticated consumer" standard. An ordinary consumer, acting reasonably under the circumstances, is the appropriate standard to be applied in false advertising cases. California law is consistent with FTC interpretation of misleading advertising. The statement here was not likely to deceive reasonable consumers.
Citation	Zavie v. Procter & Gamble Co., 129 Cal.Rptr.2d 486 (Ct. App., Calif., 2003)