make your own sexual reference: 9th Circuit partially reinstates male enhancement lawsuit

Sandoval v. PharmaCare US, Inc., No. 16-56301, No. 16-56710,
— Fed.Appx. —-, 2018 WL 1633011 (9th Cir. Apr. 5, 2018)
Sandoval brought a putative class action claim based on
PharmaCare’s statements about its “male enhancement” product IntenseX. The court
of appeals affirmed summary judgment on the false advertising and express
warranty claims based on the website, because reliance is required for those
claims and one named plaintiff testified that the website had no effect on his
purchase decision, while the other failed to submit sufficient evidence that he
viewed and relied on the website before his first purchase.
However, false advertising, express warranty, and implied
warranty of merchantability claims based on the IntenseX label were reinstated.
The label stated that the product would “intensify” a user’s “endurance,
stamina, and sexual performance,” and included a seal stating that IntenseX was
“Laboratory Quality Tested.” These were specific and concrete enough to be
treated as representations of fact.  “While
the word ‘intensify’ may have multiple meanings, when read in context, the
label’s statements could convey to a reasonable consumer that IntenseX will
increase the consumer’s endurance and stamina during sex and that its
effectiveness has been laboratory tested.”   Plaintiffs submitted evidence that lab tests
haven’t shown effectiveness.
The court of appeals also reversed summary judgment on the
UCL claim based on unlawfulness: PharmaCare’s alleged failure to comply with
federal law. A federal regulation requires any over-the-counter (“OTC”)
aphrodisiac drug to be approved by the FDA before marketing, and a product
marketed as a dietary supplement will be regulated as a drug “[i]f the label or
labeling of [the dietary supplement] bears a disease claim.” “Labeling” is
construed broadly and includes any article that “supplements or explains” the
product even if the article is not physically attached to it. The IntenseX
label refers consumers specifically to, which contains information
about the ingredients’ ability to treat diseases. That was enough.
However, the court of appeals affirmed the denial of class
certification. The named plaintiffs’ claims weren’t typical of the proposed
class, “which included prospective members who, unlike [the named plaintiffs],
suffered sexual health problems and purchased IntenseX based on the website’s
representations that it can treat sexual-health conditions.” Along with
economic injury, these class members might have suffered additional harm (avoiding
medical treatment); their available claims and remedies, as well as their
incentives, might differ.

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