IntenseX Maker Seeks Dismissal of False Advertising Class Action

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PharmaCare US Inc. is seeking dismissal of an IntenseX class action lawsuit that alleges the herbal sexual supplement doesn’t do what its labeling claims it will.

In this second of two recent legal actions over IntenseX herbal supplement, defendant PharmaCare now argues that U.S. District Judge Marilyn L. Huff should dismiss plaintiff Jonathan Kanfer’s claims for the same reason she dismissed similar claims in an earlier IntenseX lawsuit.

The company argues Kanfer’s IntenseX lawsuit challenges the same representations that were at issue in the prior action, Sandoval v. PharmaCare US.

In Sandoval, Judge Huff determined the allegedly false and misleading statements were “too vague, general and subjective to be actionable,” the company says.

For that reason, Judge Huff granted PharmaCare summary judgment in Sandoval. The company now argues it’s entitled to summary judgment on Kanfer’s claims for the same reasons.

More specifically, the company argues Kanfer’s claims under the California Unfair Competition Law, False Advertising Law and Consumer Legal Remedies Act all fail to the extent that they are based on representations made on the IntenseX website that Kanfer did not actually rely on.

The same claims also fail because they raise legal issues that are preempted by federal regulation, the company says.

Kanfer’s allegations that IntenseX is a drug are allegedly contravened by his own testimony saying he doesn’t believe it’s a drug, and the representations he takes issue with qualify as a type of non-actionable exaggeration commonly used in advertising, known as “puffery,” PharmaCare argues.

Similar reasons are fatal for Kanfer’s claims for breach of warranty and violation of the Magnuson-Moss Warranty Act, the company says. PharmaCare states that Kanfer’s claims for restitution and disgorgement implicate monies he has no ownership interest in.

Kanfer’s IntenseX class action lawsuit began in January 2015. He claims he bought IntenseX about four times in 2013 and 2014, supposedly in reliance on statements by PharmaCare implying the product was an effective aphrodisiac. He says the supplement failed to work as described.

According to Kanfer, PharmaCare US promotes IntenseX as being able to “intensify your endurance, stamina and sexual performance.” Kanfer claims no compelling scientific evidence supports these and other, similar statements attributed to the defendant.

Prospects for Kanfer’s IntenseX class action lawsuit went downhill in June 2016 after Judge Huff denied his request to certify his proposed plaintiff Class.

In seeking Class certification, Kanfer argued that a lack of readily available information about IntenseX customers did not matter since the proposed Class Members could self-identify.

But Judge Huff found multiple defects in Kanfer’s proposed Class; defects that raised issues of standing, whether certain Class Members’ claims might be barred by a statute of limitations, and whether some Class Members had received a refund or been otherwise satisfied.

Kanfer is represented by Ronald A. Marron, Skye Resendes and William B. Richards Jr. of the Law Offices of Ronald A. Marron APLC, and by David Elliot and Gregory S. Weston of the Weston Firm.

The IntenseX False Advertising Class Action Lawsuit is Kanfer v. PharmaCare US Inc., Case No. 3:15-cv-00120, in the U.S. District Court for the Southern District of California.