Statements that a Supplement Requires “No Prescription” and Has “No Harmful Synthetic Chemicals” Are Not Mere Puffery

The court denied a health supplement distributor defendant’s motion to dismiss plaintiff’s false advertising claim because defendant’s statements were not mere puffery. “⁠[W]hile ‘all natural’ and ‘no chemicals’ might be vague or highly subjective concepts, Plaintiff points out that it also cites specific factual representations made by Defendant: specifically, that the Enhancement Products contain ‘no harmful synthetic chemicals’ and that ‘no prescription is necessary.’ As Plaintiff notes, ‘the determination of whether “NO PRESCRIPTION necessary” and “NO HARMFUL synthetic chemicals” are true is very much subject to an objective standard, specifically the FDA-approved usage and 21 U.S.C. § 353(b)(1)(A) & (B).’ The Court agrees. Although some of the allegedly false phrases contained in the FAC might be little more than puffery, Plaintiff has also identified advertising language that constitutes ‘specific, detailed factual assertions’ that are actionable under the Lanham Act.”

JST Distribution, LLC v. CNV.com et al, 2-17-cv-06264 (CACD 2018-03-07, Order) (Philip S. Gutierrez)

2018-03-12T11:38:03+00:00 March 12th, 2018|Docket Report, Trademark|