Last month, in Kanfer v. Pharmacare US, Inc., U.S. District Judge Marilyn Huff of the Southern District of California dismissed on what were essentially puffery grounds a consumer suit styled as a class action alleging that defendant PharmaCare falsely advertised its nutritional supplement, IntenseX, as an aphrodisiac that “would improve. . .sexual power and performance.” This decision contrasts with another decision we covered two years ago in which a judge in the Central District of California held that claims for a sex enhancement pill were not mere puffery.

The IntenseX packaging at issue contained statements including “Sexual Power and Performance,” “Fast Acting!” and “designed to intensify your endurance, stamina, and sexual performance.”  PharmaCare moved for summary judgment asserting that these statements were too vague and generalized to be actionable.

The court agreed, finding that it was simply not plausible that a significant portion of the public would be misled by the vague claims on the IntenseX label.  In reaching its decision, the court emphasized that a “[p]laintiff has a claim for false advertising only to the extent the product claims are false or misleading, as opposed to merely unsubstantiated.”  The plaintiff’s own expert admitted that the “vague language” regarding the effects of IntenseX “remain[ed] scientifically undefined and therefore untestable.”  The court determined that this “untestability” presented an insurmountable hurdle to plaintiff’s advertising claims.

The court also rejected the plaintiff’s claims related to statements on the IntenseX website because the plaintiff admitted that he did not look at the IntenseX website before purchasing the product.

Judge Huff previously denied PharmaCare’s motion to dismiss the lawsuit.  Then in June, the court denied class certification finding problems with the proposed nationwide class, including difficulties with reliance, standing, statute of limitations, and damages.  Just last week, plaintiff filed a notice of appeal of the court’s latest decision to the Ninth Circuit. Watch this space for further developments.


Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at /212-969-3240 or /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.