We try to avoid puns in this blog but sometimes, well, we just can’t help it.
The makers of “Rockhard Weekend,” a male sex enhancement pill, have successfully sidestepped a claim that they violated federal drug labeling laws but will have to continue to defend against claims that the product’s labelling misleads consumers into believing that Rockhard Weekend will (surprise!) enhance the consumer’s sexual performance. The packaging at issues involves statements that represent Rockhard Weekend as a “sexual performance enhancer for men” or “the 72-hour sexual performance pill for men.” It also claims that Rockhard Weekend is “Doctor Tested, Doctor Approved,” “Fast & Effective,” and, predictably, provides “Rockhard Results.” Finally, it describes the product as “All Natural,” even though, the plaintiff alleges, some of the ingredients are “synthetic, chemically reduced and/or have carcinogenic properties.”
In denying the defendants’ motion to dismiss the plaintiff’s false advertising claims, a California federal judge held that these statements were not mere puffery but were instead specific claims meant to create the impression that the pill would quickly and effectively enhance sexual performance in precisely the way the product name indicates. The judge also rejected the argument that consumers would not be misled by the phrase “All Natural,” holding that simply listing the actual ingredients somewhere on the product packaging does not absolve a manufacturer from liability for making false statements that contradict the ingredient list. Finally, the judge was unpersuaded that the plaintiff’s claim regarding the phrase “Doctor Tested, Doctor Approved” only alleged that the phrase was unsubstantiated (which is insufficient under California law) not that it was false or misleading, holding that the plaintiff adequately alleged that the phrase suggests Rockhard Weekend is used, endorsed or recommended by doctors in a clinical setting when it in fact is not.
Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at email@example.com /212-969-3240 or firstname.lastname@example.org /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.