A Motion to Certify a Class Action for Attributing Medical Properties to a Food Product was Rejected

Adv. Gill Nadel, Adv. Mor Goshen

A motion to certify a class action was submitted to the District Court against Oriental Secrets Ltd., which imported, produced and marketed the "Tibetan Tea" product. The claimants allege that the company violated the Consumer Protection Law 5741-1981 by misleading consumers through allegedly misleading advertisements regarding the product's benefits. In addition, the claimants allege that the company violated the provisions of the Public Health Regulations (Food) (Prohibition of attributing medical properties to food products) 5738-1978.

Case Facts:

Oriental Secrets advertised the Tibetan Tea as a product which (among others) aids digestion, accelerates body metabolism, relaxes the nerve system and the release of fluids. Alongside the descriptive text, some of the ads featured a picture of a bare female abdomen with a tape measure wrapped around it. In addition, the company noted in its ads that the product is "approved by the Ministry of Health".

The Parties' Arguments:

The company argued that any who actually purchased the product understood at the time of purchase that it is a herbal brew which increases bowel activity, which results in weight loss. In addition, the company argued that it did not violate the prohibition of attributing medical properties to food products, as being overweight (within the "norm") is not a disease, unlike obesity, and therefore advertising a product as one which aids weight loss does not constitute attributing it medical properties, as it is not a disease which needs to be cured.

The claimants argue that the company's advertisements are in violation of the Public Health Regulations on the prohibition to attribute medical properties, in the very least of the presumption in article 2a, which prohibits mention of body parts in advertisements. The claimants based their arguments upon a letter from the Ministry of Health, which states that the company is violating the Public Health Regulations. In addition, the claimants argue that the advertisements are directed also towards people suffering from obesity. Moreover, the claimants argue that the company misled its consumers regarding the benefits of the product, contrary to the provisions of the Consumer Protection Law. The claimants allege that the "benefit" of the product derives from the fact that it contains diuretics and laxatives, while the company presented this fact as a mere side effect rather than as the method through which the product causes weight loss.

The Court's Ruling:

Regarding the argument presented regarding mention of body parts, the court ruled that the presumption cannot be an absolute presumption, it is at most a method to transfer the burden of proof to the defendant, which must then convince the court that the mention of body parts was not done in relation to attributing medical properties. The court ruled that in this case, the mention of body parts was done in order to visualize the dietetic benefit of the defendant's products, not to imply they cure disease, as fat, being overweight and even nerves are not defined as a disease in terms of the Public Health Regulations.

As for the letter from the Ministry of Health, the court ruled that it is uncertain whether the letter refers to the specific products at hand. Either way, the letter does not clearly define the violation of the company's advertisements, if any, nor the violation of the company's Tibetan Tea advertisements.

 With regard to the argument that the company's advertisement is aimed at obese people as well, not only those who are merely "overweight", the court ruled that "the fact that a product which is marketed to a generally healthy populace, may serve ill people as well, does not turn its advertisement to an inherent violation of article 2a of the Public Health Regulations. Take, for example, products designed for calming and reducing anxiety or for restful sleep. These products do not constitute medical treatment for clinical anxiety or sleep disorders, and the fact that people who suffer from such conditions may turn to such products does not make their marketing to the general public a violation of article 2a of the Public Health Regulations".

Consequently, the court ruled that the motion cannot be certified as a class action for violation of article 2a of the Public Health Regulations.

On the other hand, although it was determined that there is no plausible possibility that the company's advertisements violated the prohibition to attribute medical properties in the Public Health Regulations, the court ruled that it is plausible that the company's advertisements constitute a violation of the Consumer Protection Law by misleading consumers. The difference between the prohibition to mislead consumers and the prohibition to attribute medical properties is that while the Public Health Regulations prohibit attributing medical properties, regardless of whether these properties are real, the Consumer Protection Law prohibits attributing a health benefit only if to do so would be misleading.

The court ruled that even though the company's advertisements claimed that the Tibetan Tea allows for easy weight loss and aids digestion by increasing metabolism, cleaning the body etc. - the testimonies of experts and investigations performed raise a concern that these are baseless claims, as the only effect of the Tibetan Tea on the digestive system is through the diuretics and laxatives it contains. In addition, it is plausible that the company misled its consumers by noting that the product was approved by the Ministry of Health, as the license that was provided to the company was for the product was intended for licensing purposes only, not for advertisements.

In light of the above, the court ruled that the motion may be certified as a class action on the basis of the misleading consumers allegation.    

 [CA 13190-03-13, Ilanit Sabah V. Oriental Secrets Ltd.Ruling given on 9.3.17 by presiding judge Ofer Grosskopf]