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 www.intensex.com, 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.