Christina Spicer  |  March 3, 2015

Category: Consumer News

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serovital-growth-factor-9A California federal judge last week dismissed two proposed class action lawsuits accusing biomed companies Novex Biotech LLC and SanMedica International LLC of falsely marketing their human growth hormone (HGH) products, Growth Factor-9 and SeroVital, after finding the plaintiffs presented no evidence that the products did not provide the benefits their advertising promised.

Lead plaintiffs Julian Engel and Serna Kwan filed the HGH supplement class action lawsuits in California federal court. In them, the plaintiffs alleged that the benefits made in advertisements for Novex’s Growth Factor-9 and SanMedica’s SeroVital HGH supplements were false, including claims that the products were “clinically tested to boost human growth hormone” by 682%, and would reduce wrinkles, decrease body fat, increase lean muscle mass, create stronger bones, improve mood, heighten sex drive, and make users “look and feel decades – not years, but DECADES – younger.”

U.S. District Court Judge Maria-Elena James dismissed the plaintiffs claims on Feb. 25, finding that the plaintiffs failed to establish that the benefits of HGH, as claimed by Novex Biotech and SanMedicia marketing, were false.

“Plaintiff still does not allege that a study exists showing that these benefits are categorically impossible to achieve, or that one or more authorities studied or tested Growth Factor-9’s formula and found that it does not produce the results defendants claim,” the judge wrote in her opinion.

“As in their previous motion,” the judge explained in her order, “Defendants argue that Plaintiff’s claims must be dismissed because they are based entirely upon substantiation allegations for which there exists no private right of action.

“In response,” she continued, “Plaintiff argues that his falsity claims are not based on a lack of substantiation theory, but instead allege that Defendants’ representations are false, because there is no clinical proof supporting any of the represented benefits on the label, and the summary of a study Defendants include on the Growth Factor-9 label cannot serve as this clinical proof because ‘it is so riddled with flaws that it cannot be relied on to draw efficacy conclusions.’”

Judge James pointed out that, under California law, “[i]n the false advertising context, an advertising claim is false if it has ‘actually been disproved,’ that is, if the plaintiff can point to evidence that directly conflicts with the claim.

“By contrast,” she continued, “an advertising claim that merely lacks evidentiary support is said to be unsubstantiated.”

The judge explains that the plaintiffs failed to provide any evidence to establish their claims under federal law, that the “clinically tested” claims are false, and their claims under the uniform commercial code.

Judge James did not provide plaintiffs leave to amend, writing “[a]s the Court previously provided Plaintiff the opportunity to amend his complaint, and he has once again failed to allege facts from which the Court could conclude that Defendant’s advertising representations were false, the case is dismissed with prejudice.”

The lead plaintiffs are represented by Elaine A. Ryan, Patricia N. Syverson, Lindsey M. Gomez-Gray and Manfred P. Muecke of Bonnett Fairbourn Friedman & Balint PC and Stewart M. Weltman of Stewart M. Weltman LLC.

The HGH Supplement Class Action Lawsuits are Engel v. Novex Biotech LLC, et al., Case No. 3:14-cv-03457, and Kwan v. SanMedica International LLC, et al., Case No. 3:14-cv-03287, both in the U.S. District Court for the Northern District of California.

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