An advertiser’s claims were too vague to be actionable, a California federal court held when dismissing a false advertising class action. 

Jonathan Kanfer sued Pharmacare, asserting that the company deceived consumers with misleading label claims for its herbal sexual supplement IntenseX. False promises on the product’s label included “Sexual Power and Performance,” “Fast Acting!” and “designed to intensify endurance, stamina, and sexual performance,” the plaintiff said. He argued that the company had no evidence that the product improved sexual performance.

The court initially denied the defendant’s motion to dismiss, but the litigation momentum changed course when the court also denied the plaintiff’s motion for class certification, finding that consumers were not exposed to a widespread, long-term marketing campaign and that Kanfer did not submit sufficient evidence that the challenged claims were material to consumers or that others similarly found the product lacking.

Pharmacare then moved for summary judgment. The plaintiff argued that Kanfer failed to demonstrate actual reliance, and the claims on the product label were too generalized and vague to be actionable.

U.S. District Court Judge Marilyn L. Huff agreed.

“At his deposition, Plaintiff repeatedly testified that he only relied on statements appearing on the IntenseX package when purchasing the product,” she noted, with a sample exchange from Kanfer’s deposition: “Q: Have you given me all of the reasons why you purchased IntenseX? A. The reason was simple, the advertising on the box drew my attention to it.” The plaintiff’s complaint did not allege he ever looked at the defendant’s website prior to purchasing the product, the court added.

As for the packaging claims, the “Plaintiff’s own expert points out that … ‘the vague language used with respect to IntenseX effects on power and performance has no support as such terms remain scientifically undefined and therefore untestable,’” Judge Huff wrote. “Thus, it is not plausible that a ‘significant portion of the general public’ would be misled.”

With the plaintiff lacking actual reliance for his fraud claims and unable to pass the “reasonable consumer” test for allegations of violations of California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, the court granted Pharmacare’s motion for summary judgment.

To read the order in Kanfer v. Pharmacare, Inc., click here.

Why it matters: The court relied upon testimony from the plaintiff’s own expert to determine the allegations failed to meet the “reasonable consumer” test, granting summary judgment in favor of the advertiser.