Plaintiffs John Sandoval and Jonathan Kanfer brought a class action complaint against PharmaCare US, alleging false advertising and unfair competition related to Defendant’s over the counter aphrodisiac drug “IntenseX."  Recently, the Ninth Circuit affirmed in part and reversed in part the lower court's decision granting the defendant summary judgment.  Here are some key points from the decision. 

The Ninth Circuit affirmed the lower court's decision to grant summary judgment on the false advertising claim for statements made on the company's website, because the plaintiffs had said that the website did not effect their decision to purchase the product.   

In contrast, the Ninth Circuit reversed the lower court's order granting summary judgment on the false advertising based on allegedly false claims that were made on the IntenseX product label. The label stated that IntenseX would “intensify” a consumer’s “endurance, stamina, and sexual performance.”  The label also included a seal indicating that IntenseX was “Laboratory Quality Tested.” The Ninth Circuit held that these statements were advertising claims that were sufficient to create a genuine issue of fact for the jury.