A New Jersey appellate panel reversed dismissal of a false advertising suit challenging claims for a homeopathic flu medicine, allowing the suit to move forward.

Harold W. Hoffman filed suit against King Bio in May 2017, asserting violations of state law after he purchased the company’s Multi-Strain Flu Relief for almost $15. He alleged that the claims that the product provides temporary relief from symptoms of the flu were demonstrably false because the homeopathic formulation was medically incapable of delivering any therapeutic benefit against the flu or any other medical condition.

A trial court judge granted the defendant’s motion to dismiss, ruling that Hoffman failed to state a claim. The plaintiff appealed and the panel reversed, emphasizing that at such an early stage of the litigation, the analysis should be based on the mere existence of a cause of action—not the ability of the plaintiff to prove what he or she alleged.

The “plaintiff has clearly alleged that King Bio’s claims for the efficacy of its Flu Relief are false, thus constituting an unlawful practice in connection with its sale or advertisement,” the court wrote. “Because plaintiff further alleged he purchased the product for $14.99 in reliance on King Bio’s representations of the therapeutic value of the product, and instead received a product with no therapeutic value, worth much less than what he paid, he has plainly stated a cause of action.”

Hoffman’s failure to allege that he used the product or that he demanded a refund did not impact his cause of action, the panel said. Nor did the fact that the studies included in the plaintiff’s complaint did not specifically reference Multi-Strain Flu Relief, or that Hoffman—a lawyer proceeding in the putative class action pro se—cannot serve as both counsel and a class representative.

“Although plaintiff could not prove his cause of action based only on those studies, he has no obligation to prove his allegations today,” the panel wrote. “Likewise, whether plaintiff can prove he purchased Flu Relief in reliance on King Bio’s claims for the product, or whether it can show plaintiff had no hope the product would work as described and thus any loss he suffered was self-inflicted, are issues for another day.”

The panel reversed dismissal of the complaint.

To read the opinion in Hoffman v. King Bio, Inc., click here.

Why it matters: The trial court was too harsh in its assessment of the plaintiff’s complaint, the appellate panel found, particularly at such an early stage of the proceedings. The analysis of a motion to dismiss should focus on the “allegations in the complaint, exhibits attached to the complaint, matters of public record and documents that form the basis of the claim,” and “not the ability of the plaintiff to prove what he has alleged,” the appellate panel said.