Antitrust Law Daily Wrap Up, ADVERTISING—C.D. Cal.: No firm basis to dismiss misrepresentation allegations against male sexual enhancement product, (Sep 24, 2014)

By Edward L. Puzzo, J.D.

False advertising claims against the distributor of a male sexual enhancement product, based on alleged misrepresentations on the product packaging, were sufficient to survive a motion to dismiss, the federal district court in Los Angeles has ruled (Dorsey v. Rockhard Laboratories, LLC, September 19, 2014, Pregerson, D.).

Kenny Dorsey, on behalf of a putative class, brought claims against Rockhard Laboratories, manufacturer and distributor of “Rockhard Weekend,” a purported male sexual enhancement product. Dorsey alleged that he purchased the product based on statements on the product packaging, such as “sexual performance enhancer for men,” “the 72-hour sexual performance pill for men,” “doctor tested,” and “doctor approved.” Dorsey alleged that the packaging statements amounted to explicit claims that the product would enhance male sexual performance, but that the product failed to perform as advertised. He brought fraud-based claims against Rockhard Laboratories alleging false advertising and violations of the California Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA). Rockhard moved to dismiss.

Reliance. Rockhard first argued that, as the product had different iterations of its formula and packaging over time, and Dorsey did not specify which iteration he used, he therefore failed to allege reliance on particular misrepresentations and thus did not have standing. The court responded that the same messages were conveyed to all potential purchasers, regardless of iteration of product packaging. The court found that Dorsey’s allegations were sufficient to establish reliance on product packaging.

Injury. Rockhard contended that Dorsey’s pleadings were insufficiently specific in alleging how the product did not perform as advertised. The court responded that, unlike a food product that could offer multiple benefits, a male sexual enhancement product has only one purpose. The allegation that the product did not perform as advertised was sufficient to plead an injury in fact, the court ruled.

Standing. Rockhard argued that Dorsey lacked standing to represent a putative class that would include purchasers of iterations of the product that were different from the product he purchased. Whether class representatives may be allowed to present claims on behalf of others with similar, but not identical, interests depends not on standing, the court explained, but rather on an assessment of the typicality and adequacy of representation. In this case, that issue would be revisited at the class certification stage. At this stage, however, Dorsey’s claims appeared to be sufficiently similar to those of putative class members who purchased different iterations of the product, the court ruled. Similar phrasing was used on every version of the product packaging, even as the formula and packaging underwent some changes, the court stated.

Specificity. Rockhard alleged that Dorsey’s false advertising, UCL and CLRA claims sounded in fraud, and lacked the “who, what, when, where and how” specificity required by Fed. R. Civ. P. 9(b). The court did not agree. Dorsey’s complaint specified what the false statements were, when and where he purchased the product, and how the statements led him to believe that the product would enhance male sexual performance. This was sufficient specificity, the court ruled.

Puffery. Rockhard also contended that many of the representations on the product packaging, such as “Sexual Performance Enhancer for Men” and “Fast & Effective” were mere puffery and thus not actionable. The court disagreed, finding that the statements, taken as a whole and in context, were not just puffery but made specific claims regarding the purported sexual performance enhancement benefits of the product. Thus the allegations could not be dismissed on that basis, the court ruled.

All-natural. Rockhard further claimed that the “all natural” statements on the packaging, which Dorsey claimed were misleading because the product contained various chemicals not found in nature, were not deceptive to a reasonable consumer. Pelayo v. Nestle USA (2013 WL 5764644, C.D. Cal. 2013) was cited by Rockhard for the proposition that the phrase “all natural” could never be considered deceptive to a reasonable consumer. But, the court countered, under Williams v. Gerber Products Co. (552 F.3d 934, 9th Cir. 2008), reasonable consumers are not expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list on the side of the box. Simply listing the actual ingredients of the product did not absolve the defendant for false statements that contradicted the ingredient list, the court stated. The underlying facts here gave rise to a plausible claim that the “all natural” phrase could have been misleading to a reasonable consumer under the circumstances.

The case is Civil Action No. CV 13-07557 DDP (RZx).

Attorneys: Alexis M. Wood (Law Offices of Ronald A. Marron) for Kenny Dorsey. Sarah A. Syed (Buchalter Nemer) for Rockhard Laboratories LLC and Rockhard Laboratories Holdings LLC.

Companies: Rockhard Laboratories LLC; Rockhard Laboratories Holdings LLC

Cases: Advertising StateUnfairTradePractices CaliforniaNews