Two men struggling to get a date may get their revenge on a soap company that purportedly promised use of certain body wash products will help them attract women. On August 23, 2013, the Southern District of California entered an order denying, in part, the defendants' motion to dismiss the plaintiffs' false advertising, deceptive practices and breach of warranty claims under various state and federal statutes. Margolis, et al. v. The Dial Corp., et al., Case No. 12-CV-288 (S.D. Ca. Aug. 23, 2013).
The plaintiffs, Robert Margolis and Frank Ortega, filed a putative class action against The Dial Corporation, and its affiliated companies, alleging that the defendants' sale and marketing of their product line, Dial for Men Magnetic Attraction Enhancing Body Wash, was purchased based on the defendants' claims that the products "have pheromones in them that attract women." Unfortunately, these two men (and, according to their complaint, numerous others) have yet to attract women "like steel to a magnet." (The court was much more diplomatic, stating only that "[t]he Products did not work for Plaintiffs as advertised.")
In particular, the plaintiffs filed suit alleging violations of the California Consumers Legal Remedies Act, California's unfair competition and false advertising law, Magnuson-Moss Warranty Act, Arizona Consumer Fraud Act, breaches of express and implied warranties of merchantability, and unjust enrichment. In addition to various claims made regarding the effects of use of the products, the plaintiffs argued that the defendants misrepresented scientific evidence on "the effectiveness of pheromones in making a woman more sexually receptive to men." The plaintiffs cited "an animated singing molecule on [d]efendants' website which represents that pheromones are sensed by women's vomeronasal organs [sensory organs in the nose]." The defendants moved to dismiss all of the plaintiffs' claims.
The defendants argued, among other things, that the plaintiffs failed to allege adequately their false marketing claims. In general, the relevant statutes prohibit unfair methods of competition, and unfair or deceptive acts or practices, through the dissemination of untrue or misleading statements. The plaintiffs must plead and prove that "the reasonable consumer" would be misled by the challenged misrepresentations.
The defendants argued that several of the alleged claims were non-actionable puffery. Not surprisingly, the Court agreed with the defendants that their claims of – "stand back and watch the magic happen"; "leave you smelling so good women can't help but notice"; and "will attract your woman like steel to a magnet" – were exaggerated advertising on which no reasonable consumer would rely.
What is surprising are the claims that survived dismissal. Specifically, the court found that "the challenged representations that the products are 'Pheromone-infused' and that women will be more sexually receptive to men upon sensing the products' pheromones 'with her vomeronasal organ,'— are factual statements based on the specific or absolute characteristics of the Products." The court explained that these representations by the defendants "are not mere 'puffery,' but instead advertising that may be plausibly 'false,' or 'misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.'" (Read: Assume that the "reasonable consumer" is naïve.)
The court also rejected the defendants' argument that the complaint alleges only a lack of substantiation, which, under California law, is not a cognizable consumer claim. (Under California law, a plaintiff must prove that a challenged claim is either false or misleading.) The court found that the plaintiffs alleged that the products fail and the challenged claims are false because women do not possess vomeronasal organs. Further, the defendants' claim that the products are pheromone infused is false because "'androstadienone is not a pheromone but an androgen hormone, or steroid.'"
Aside from the seemingly endless puns and double entendres that this case provides, the decision is significant for those practicing in the area of consumer law. As we have seen from other courts (e.g., Carrera v. Bayer Corp., No. 12-2621 (3d Cir. Aug. 21, 2013)), consumer class actions are an endangered species. Therefore, while the plaintiffs in Margolis survived dismissal, it is doubtful they will be as successful in certifying a class of men bamboozled by the singing molecule that purports to find them a mate. (Though, the depositions of the proposed lead plaintiffs promise to be some good reading – "Who did you attempt to attract after using the products? How did you attempt to attract these women? How did they reject you? How do you know that they rejected you because of the products and not some other reason?" But, I digress.) If plaintiffs in these cases can unlock the doors to discovery, there is an economic argument for settling before the onslaught of expensive document collection, review and production, depositions, and expert retention – all of which is necessary to contest certification. It will be interesting to see whether cases like Margolis, one of the more extreme examples of a false advertising case surviving dismissal, will blunt the effect of recent decisions chipping away at the viability of consumer class actions at the certification stage.