A California federal court has dismissed with leave to amend a putative class action alleging that SanMedica International falsely advertised its SeroVital® supplement as clinically tested to provide a 682 percent increase in human growth hormone (HGH) levels. Kwan v. SanMedica Int’l, LLC, No. 14-3287 (U.S. Dist. Ct., N.D. Cal., order entered October 30, 2014).
The court rejected the plaintiff’s argument that SanMedica advertised its product as providing “youthful skin integrity, lean musculature, elevated energy production [and] adipose tissue distribution,” finding instead that the SeroVital® advertising “merely states that peak growth hormone levels are associated with those benefits,” so the study underlying the advertising did not need to test for the alleged benefits. The court also rejected the plaintiff’s contention that the clinical study did not support the advertising claims, agreeing with SanMedica that the argument supported a substantiation claim but not a false-advertising claim.
Assessing the complaint as a whole to determine its sufficiency, the court examined other arguments that may support the false-advertising claim. It found fault with the studies the plaintiff cited, including New England Journal of Medicine articles about HGH, because some statements were at least 11 years old while others were undated, so the court “has no way of knowing whether the alleged statements were made before SeroVital was in testing or on the market. If these statements were made before SeroVital was created, then these statements may well be irrelevant because they refer to a world in which this product did not exist.”