Judge Dismisses SeroVital False Ad Class Action Lawsuit

Last week, a federal judge tossed claims against the health supplement maker SanMedica International that the company’s human growth hormone booster, SeroVital, violated diet supplement regulations.

Lead plaintiff Serena Kwan filed the SeroVital class action lawsuit against SanMedica in July of this year. She alleges that she decided to purchase the diet supplement SeroVital after seeing ads for the product on the Dr. Oz show and in Shape magazine. The plaintiff did not name Dr. Oz or the magazine as defendants in the SeroVital lawsuit.

According to the false advertising class action lawsuit, SanMedica produces and sells SeroVital as a diet supplement to boost human growth hormone (HGH). The plaintiff alleges in advertising the over the counter supplement, SanMedica told consumers “(1) that SeroVital provides a 682% mean increase in HGH levels; (2) that SeroVital is clinically tested; and (3) that ‘peak growth hormone levels’ are associated with youthful skin integrity, lean musculature, elevated energy production, [and] adipose tissue distribution.”

However, according to the SeroVital class action lawsuit, “the FTC has stated that ‘no reliable evidence’ supports that non-prescription products have the same effect as prescription HGH; (2) the New England Journal of Medicine published an article touting HGH’s benefits in the 1990s, and another in 2003 warning about the potential for misleading consumers; and the FDA has stated that ‘it is unaware of any reliable evidence to support anti-aging claims for over-the-counter pills and sprays that supposedly contain HGH.’”

Kwan alleges two causes of action, including a violation of California’s Unfair Competition Law and a violation of California’s Consumer Legal Remedies Act.

SanMedica filed a motion to dismiss the SeroVital class action lawsuit arguing that the plaintiff brought only “substantiation claims” and had not established private right of action, and failed to show that the company’s advertising claims are false.

U.S. Magistrate Judge Maria-Elena James agreed and dismissed the SanMedica class action lawsuit in an order issued on Oct. 30. “The first problem with these rather bare-bones allegations is that none of the authorities cited actually refer to SeroVital,” Judge James noted in her order. “The Court therefore cannot infer from these statements that Defendant’s advertising claims are false,” she continued.

Judge James also pointed out that the publications the plaintiff relied on in her SeroVital class action lawsuit as decades-old and stated they “may well be irrelevant because they refer to a world in which this product did not exist.” Judge James did grant the plaintiff leave to amend the false advertising class action lawsuit by Dec. 1.

“The Court finds that the Complaint, as drafted, is insufficient, and therefore GRANTS Defendant’s motion,” said the judge in her order. “However, the Court cannot say at this time that it would be impossible for Plaintiff to amend her Complaint in a manner that would survive a [dismissal] motion. Should Plaintiff choose to amend her Complaint, she must allege facts from which the Court can conclude that Defendant’s advertising representations were false. As the Court has already stated, it is not enough for Plaintiff to attack the methodology of Defendant’s study; instead, she must allege facts affirmatively disproving Defendant’s claims.”

The SeroVital False Advertising Class Action Lawsuit is Kwan v. SanMedica International LLC., Case No. 3:14-cv-03287-MEJ, in the U.S. District Court for the Northern District of California.