I. Overview of Proceedings

The trial in this action was held commencing on October 22, 2001 in Dept. 20 of the above-entitled court, Hon. Haley J. Fromholz, Judge, presiding. Plaintiff National Council Against Health Fraud, Inc. (“Plaintiff” or “NCAHF”) was represented by Morse Mehrban, Esq. Defendants King Bio Pharmaceutical, Inc. and Dr. Frank J. King, Jr. (“Defendants”) were represented by Scott D. Pinsky, Esq.

Following opening statements by the parties, Defendants moved for a non-suit pursuant to Code of Civil Procedure § 631.8 on the grounds that the Plaintiff had not identified in its opening statement evidence sufficient to establish a prima facie case. The Court heard argument by counsel for the parties on Defendants’ motion and denied the motion without prejudice. Thereafter, NCAHF presented its case, which began with the testimony of two proffered experts, Wallace I. Sampson, M.D. and Stephen Barrett, M.D. Plaintiff also offered brief testimony by its counsel, Mr. Mehrban, and called Defendant Frank J. King as a witness. By stipulation of the parties, the expert witness designated by Defendants, Jacquelyn J. Wilson, M.D., was called by Defendants to testify out of order and during the presentation of the Plaintiff’s case due to scheduling reasons. Cross examination was permitted as to all of the above witnesses. In addition to the foregoing evidence, both sides filed extensive trial briefs and supplemental trial briefs both prior to and during the course of the trial, and also submitted further authorities during the course of the proceedings for the Court’s consideration.

Following the close of Plaintiff’s presentation of evidence, Defendants renewed their motion for judgment pursuant to Code of Civil Procedure § 631.8. The Court again heard argument by counsel for the parties on Defendants’ motion. The Court also considered and weighed the evidence presented by the above-stated witnesses for the parties. Moreover, the Court considered the various trial briefs and supplemental trial briefs and supporting authorities submitted and argued by the parties on the issues before the Court. Having reviewed and considered all these matters, and having considered and weighed the evidence presented by the Plaintiff in its case in-chief, as well as the evidence adduced through cross-examination of the Plaintiff’s witnesses, the Court hereby grants Defendants motion and directs that judgment shall be entered in favor of the Defendant, and against Plaintiff, as set forth below. The reasons for the Court’s ruling are as follows.

II. Plaintiff’s claims and elements thereof

Plaintiffs’ claims are brought principally under certain provisions of the Cal. Business and Professions (“B & P”) Code, specifically B & P Code §§ 17200, 17500 and 17508. Sections 17500 and 17508 of the Code prohibit false or misleading advertising. A violation of these false advertising prohibitions may also constitute a separate, parallel violation of the unfair business practices bar under B & P Code § 17200. Section 17200 also permits an action based on any business practice that is unlawful, fraudulent or unfair. The principal allegations in the Complaint and the focus of the Plaintiff’s evidence at trial indicate that the primary violation of law alleged by NCAHF against the Defendants is false advertising, i.e. some form of false, deceptive or misleading statements or representations in the labeling or advertising used by Defendants in marketing their products. The plaintiff did not strongly assert that the Defendants have violated the other prongs of B & P Code § 17200, which prohibit business practices that are unlawful, fraudulent or unfair. Plaintiff did make an attempt to argue that the evidence adduced at trial could be viewed as supporting a finding that Defendants’ actions were unlawful, fraudulent or unfair within the meaning of § 17200. But the only evidence offered by Plaintiff concerned the alleged falsity of Defendant’s advertising.

Although Plaintiff did not present evidence specifically pertaining to the labeling of Defendants’ products, there was no dispute between the parties that the labels affixed to Defendants’ products contained substantively the same information as was contained in the advertising which formed the basis for the Plaintiff’s claims. The parties further agreed that the products in question are homeopathic drugs regulated under numerous provisions of federal and state law. See 21 U.S.C. §§ 321 et seq.; B & P Code §§ 13 and 4025; Cal. Health & Safety Code §§ 11014, 109985, 111225 and 111235. Plaintiff also admitted that there is no evidence of a violation of such state or federal drug laws by Defendants; Plaintiff offered no evidence or legal authority respecting any such possible violation. Plaintiff further did not dispute that Defendants’ products fall squarely within the definition of legal, non-prescription homeopathic “drugs” under both federal and state laws. Id.

Nonetheless, Plaintiff argued and attempted to offer testimony to the effect that the claims stated in Defendants’ advertising are scientifically unsupportable and is therefore allegedly false.

III. Burden of proof

The Plaintiff’s initial trial brief argued that the burden of proof in this action should be shifted to the Defendants, citing several California and federal administrative cases. The Plaintiff’s trial brief seemed implicitly to concede that the Plaintiff could not meet its burden of proof–i.e. the establishment of Defendants’ liability by a preponderance of the evidence-if the burden were not so shifted to Defendants. The Defendants filed a supplemental brief responding to the Plaintiff’s arguments and asserted that the burden lies with NCAHF and that the cases it cited to the contrary are inapposite or do not govern in California. The Court finds that the authorities cited by the Plaintiff do not support Plaintiff’s position on this issue. There appears to be no case in California to support the shifting of the burden of proof to the Defendant in a case of this type. The burden of establishing each element of its claims therefore lies with Plaintiff NCAHF. Cal. Evid. Code § 500.

In a subsequent, supplemental brief, the Plaintiff next argued that even if the burden lies initially with the plaintiff in a false advertising case, only slight evidence is required to then shift the burden to the defendant. This argument was based on several federal appellate opinions from appeals of administrative hearings before the U.S. Federal Trade Commission. No authority was presented to suggest that these decisions are applicable to the issues at bar, namely who has the burden of proof and to what degree in a civil action brought in state Court. Since Plaintiff has failed to demonstrate through appropriate authorities that the burden of proof is in any way transferred or modified by any of the authorities it cited, the Court finds that the burden is on the Plaintiff NCAHF to prove its case by establishing each element of its various causes of action by a preponderance of the evidence.