Lavie

Introduction

This appeal arises out of appellant’s challenge to allegedly deceptive television commercials supporting the launch of Aleve, a nonprescription pain relief product developed, manufactured and marketed by respondents. Plaintiff-appellant Zion Lavie appeals from the judgment against him and in favor of defendants-respondents Procter & Gamble Co. (Procter & Gamble), *500 Syntex Health Products, Inc. (Syntex), Procter-Syntex Health Products Company (Procter-Syntex), and others, 1 following a court trial upon appellant’s action challenging television advertising supporting the launch of ProcterSyntex nonprescription pain reliever Aleve in the mid-1990’s. Among other claims, appellant alleged the television advertising promoting Aleve violated the California unfair competition law (Bus. & Prof. Code, § 17200) (UCL) and this state’s false advertising law (Bus. & Prof. Code, § 17500) 2 because the explicit claim of the ads that “Aleve is gentler to the stomach lining than aspirin” was false and/or likely to mislead members of the public and because the advertisements contained an implicit and false message that Aleve was gentle to the stomach and would not cause…

I concur in everything my colleagues say, but I would have phrased matters a bit more strongly regarding the position urged in the Attorney General’s amicus curiae brief.

I find the Attorney General’s position both troubling and startling for three separate and distinct reasons. First of all, and certainly most importantly, it effectively asks us to not only create new law but to do so in direct contradiction of precedent from our own Supreme Court. As the majority notes, that court has stated that the test under Business and Professions Code section 17200 is whether a “reasonable consumer” would have been misled. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55 [ 77 Cal.Rptr.2d 709 , 960 P.2d 513 ].) As I am sure the Attorney General’s Office understands, we are required to follows applicable precedent from our Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ].)

Second, and aside from our mandate to follow binding precedent, the Attorney General essentially asks us to become the only court to hold that a violation of Business and Professions Code section 17200 is evaluated by…

Certified for Partial Publication. [*]

This appeal arises out of appellant's challenge to allegedly deceptive television commercials supporting the launch of Aleve, a non-prescription pain relief product developed, manufactured and marketed by respondents. Plaintiff-appellant Zion Lavie appeals from the judgment against him and in favor of defendants-respondents Procter & Gamble Co. (Procter & Gamble), Syntex Health Products, Inc. (Syntex), Procter-Syntex Health Products Company (Procter-Syntex), and others, [1] following a court trial upon appellant's action challenging television advertising supporting the launch of Procter-Syntex non-prescription pain reliever Aleve in the mid-1990s. Among other claims, appellant alleged the television advertising promoting Aleve violated the California unfair competition law (Bus. & Prof.Code, § 17200) (UCL) and this state's false advertising law (Bus. & Prof.Code, § 17500) [2] because the explicit claim of the ads that "Aleve is gentler to the stomach lining than aspirin" was false and/or likely to mislead members of the public and because the advertisements contained an implicit and false message that Aleve was gentle to the…