Advertising dysfunction: claim against male sexual enhancement pill proceeds

Dorsey v. Rockhard Laboratories, LLC, 2014 WL 4678969, No. CV 13–07557 (C.D. Cal. Sept. 19, 2014)
Dorsey sued over Rockhard Weekend (RHW), “a male sexual enhancement product,” primarily promoted by labeling on the packaging. The chemical formulation and packaging have changed several times over the years, but Dorsey alleged that the name, purported use, and overall message remained the same.  There are multiple packages (one-capsule retailing at around $5, 3-capsule around $15, and 8-capsule around $30).  RHW called itself a “sexual performance enhancer for men” or “the 72–hour sexual performance pill for men.” The packaging also promised “Doctor Tested,” “Doctor Approved,” “Fast & Effective,” and “Rockhard Results.”  Further, Rockhard advertised RHW as “All Natural,” even though some of the ingredients of RHW were allegedly “synthetic, chemically reduced and/or have carcinogenic properties.”  Dorsey alleged that he relied on these claims to his detriment, and that they were false because none of the ingredients in any version of RHW enhanced male sexual performance.  Also, he alleged that the labeling was unlawful because it is a “new drug” unapproved by the FDA in making claims to be an aphrodisiac.  The usual California claims resulted.

Rockhard Weekend package with challenged claims
Rockhard argued that Dorsey hadn’t pled reliance because he didn’t specify which iteration of RHW he bought, and the packaging changed over time.  However, “it is clear from looking at the packaging of various iterations of the product that the same messages were conveyed to all potential purchasers of RHW.”  Given that RHW was a single-use/limited-use product, it was unsurprising that Dorsey no longer had the packaging; given the similarities among the iterations, it was also unsurprising that he couldn’t differentiate among them.  The allegations sufficed to show his reliance.
Although Dorsey could have been more specific about how or why RHW didn’t perform as advertised, he still alleged that “[n]one of the ingredients in any iteration of RHW … will enhance male sexual performance.”  Even without “specifics regarding what happened when Plaintiff took RHW,” this demonstrated an injury in fact: the product allegedly contained no ingredient that had the effect that the packaging represented the product to have.  And he alleged that he wouldn’t have bought RHW but for the misrepresentations, a highly plausible allegation given that there’s really only one reason to buy a product that purports to enhance male sexual performance.
As for iterations he didn’t purchase, his ability to represent purchasers thereof would be better decided at the class certification stage. At this stage, Dorsey’s claims were sufficiently similar to those of putative class members who purchased a different iteration of the RHW product to potentially allow him to represent them in this class action.  The various versions of the packaging attached to the complaint showed very similar phrasing on every version and a consistent marketing scheme persisting through formula and packaging changes.  And the name never changed.
Then the court found that the complaint satsified Rule 9(b), alleging the specific language of the false statements (and attaching images of the packaging), when and where he bought RHW, and that the ingredients didn’t work; he alleged “what consumers would understand the statements to mean and how that understanding is misleading”  He made similar allegations about “All Natural” and “Doctor Tested, Doctor Approved”: he alleged that “a reasonable consumer would expect an ‘all-natural’ product to contain ingredients found in nature, derived from natural sources, absent of manmade processes, and which are wholesome and safe,” and that a reasonable consumer was likely to believe that RHW was “used, endorsed, or recommended by doctors practicing medicine in clinical settings.”
Rockhard argued that many of the representations on its packaging were mere puffery (no pun intended?), such as “Sexual Performance Enhancer for Men,” “Fast & Effective,” and “Rockhard Results.”  Taken as a whole and in context, these weren’t puffery, but instead specific claims about the benefits of taking RHW. “These statements create the impression that, by taking the product, a consumer will have enhanced sexual performance, that the effect will happen quickly, and that the consumer can expect to have a ‘Rockhard’ erection.”
Rockhard also argued that reasonable consumers wouldn’t be deceived by “All Natural.” Though some cases so conclude, each statement must be evaluated in context and consumers don’t need to search the ingredient list for disconfirming evidence.  Dorsey alleged a plausible interpretation of what the phrase would mean to a reasonable consumer, and identified the ingredients that didn’t fit this interpretation. Plus, nothing but the small type nutrition facts panel on the back would lead a consumer to question “All Natural,” and there was no indication that Dorsey would have had reason to read the nutrition facts. Under Williams, “[s]imply listing the actual ingredients of the product does not absolve Defendants of all potential liability for making false statements that contradict the ingredient list.”
Rockhard also argued that Dorsey’s claim against “Doctor Tested, Doctor Approved” was an improper lack of substantiation claim, based on Dorsey’s allegation that “Defendants have not and cannot cite any research studies or unsolicited endorsements of RHW by medical doctors, nor is RHW used in clinical settings for the treatment of male impotence or any other condition.”  The complaint sufficiently alleged false advertising, not just lack of substantiation.  Dorsey alleged what “Doctor Tested, Doctor Approved” would mean to a reasonable consumer, and then alleged that RHW wasn’t used in any clinical setting to treat any condition, which sufficiently alleged falsity.
The court did dismiss claims under the “unfair” prong of the UCL; the allegations went to “unlawful” and “fraudulent” conduct.
The “unlawful” claim was based, in part, on allegedly unlawful labels purportedly advertising RHW as an aphrodisiac in violation of the FDCA’s new drug rules.  Rockhard alleged that RHW was a dietary supplement, not a drug, and thus not required to seek preapproval.  Under the FDCA, a drug is an “article [ ] intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals.”A dietary supplement is “a product … intended to supplement the diet [that has certain ingredients].”  RHW’s label said it was a dietary supplement.  And, although the packaging as a whole might convey that RHW would improve male sexual performance, there was no statement that RHW was designed to cure erectile dysfunction, impotence, or any other “disease.” “Aphrodisiac” didn’t appear on any of the packaging. Thus, Dorsey didn’t plausibly allege that RHW was a “drug,” requiring prior approval of its labeling by the FDA.  Claims dismissed to the extent they were based on FDCA violations.
Warranty claims: Presuit notice isn’t required in California where the defendant is a manufacturer with whom the purchaser didn’t deal, as here.  Nor were the claims puffery—see above.  So express and implied warranty claims survived.
Magnuson-Moss Warranty Act (MMWA) claims: Under the MMWA, a warranty “relates to the nature of the material or workmanship and affirms or promises that such material or workmanship is defect free or will meet a specified level of performance over a specified period of time.” But a product description isn’t a warranty under the MMWA.  For “Sexual Performance Enhancer for Men” and “Fast & Effective,” Dorsey stated a plausible claim under the MMWA. These related to the nature of the product and weren’t mere product descriptions.  But “Doctor Tested, Doctor Approved” was; the statement contributed to the message that RHW contained an active, effective ingredient but didn’t relate directly to the “material or workmanship” of the RHW pill.
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