An Englewood, NJ lawyer has been given permission to move forward with a lawsuit against World Class Nutrition, the manufacturer of “Erection MD” – a purported sexual enhancement pill. But there are several interesting facts surrounding this decision, handed down by a state appeals court, namely that: online shoppers are not bound by disclaimers unreasonably buried on websites. The judges wrote “The website was designed in a manner that makes it unlikely that consumers would ever see [the disclaimer] at all on their computer screen.” Traditionally, this is exactly where shady-@ss manufacturers will bury their bullsh*t disclaimers, hoping nobody reads the fine print. Well, the party might be over for these types of scam artists.
The product is your garden-variety tribulus, yohimbe, long jack, type of supplement, with all of the usual claims (including the hilarious statement “You will truly “fill” her ultimate desires“). But the really, really interesting point in this lawsuit is that the plaintiff (who is also the attorney of record), doesn’t contend that he ingested any of the pills. He’s suing, in essence, because New Jersey happens to have a law on the books that “requires advertisers to substantiate claims made in advertisements about the safety, performance, availability, efficiency, quality or price of their products” – if he wins this lawsuit, we can expect a ton of others being filed against similar (and not so similar) products.
Personally, I think this is a very good thing: manufacturers will need to substantiate claims for their products or they’ll face lawsuits from anyone who wants to sue, without actually taking the product, and will not be protected by some disclaimer buried at the bottom of their website. And what will happen when supplement companies need to start substantiating claims…?
Englewood lawyer can sue over ‘sexual enhancement’ pills sold over Internet
Friday, May 13, 2011 BY KIBRET MARKOS
The Record STAFF WRITER
An Englewood attorney can proceed with his lawsuit against two Arizona vendors that sold him “sexual enhancement” pills under the brand name “Erection MD” over the Internet, a state appeals court ruled Friday. Citing established precedent, the three-judge panel found that online shoppers are not bound by disclaimers that are unreasonably buried on vendor websites. The vendors — Supplements Togo Management and World Class Nutrition – noted on their websites that buyers agree that “any and all litigation will take place in the state of Nevada.”
The plaintiff, Harold Hoffman, alleged the companies sold the drugs by advertising their effectiveness without any hard evidence. He said he is not bound by the disclaimer because it was tucked at the bottom of the Web page where buyers could not see it without scrolling down. He also said once buyers add a product to a shopping cart, they are directed to Web pages that do not show the disclaimer. Appellate Judge Jack M. Sabatino, writing for the panel, agreed. “The website was designed in a manner that makes it unlikely that consumers would ever see [the disclaimer] at all on their computer screen,” he said. Hoffman, who filed the lawsuit on behalf of himself and two other buyers, applauded the ruling. “This decision will protect the rights of millions of Internet purchasers to not be subjected to the terms of a cyberspace contract which they were never aware of and which they never agreed to,” he said.
Scott Shaffer, the attorney for the vendors, which are affiliated, said he and his clients will “aggressively defend this case and look forward to ultimately prevailing on the merits.” Hoffman bought a bottle of “Erection MD” from World Class Nutrition’s website last year. In limp grammar, the website claimed the product “enhances sex drive, maximum performance, instantly boost testosterone levels, rapid blood flow, ultimate stamina, higher volume of ejaculate.” Hoffman paid $59.99 plus shipping, and filed a lawsuit in Superior Court in Hackensack four days after delivery. The lawsuit seeks an unspecified amount in compensatory and punitive damages.
New Jersey law requires advertisers to substantiate claims made in advertisements about the safety, performance, availability, efficiency, quality or price of their products. The vendors, however, asked a Superior Court judge in Hackensack to dismiss Hoffman’s lawsuit, saying the case cannot be heard in New Jersey because Hoffman agreed to a disclaimer requiring him to litigate in Nevada. They also argued that Hoffman cannot sue without showing that he actually took the pills and suffered a loss. Hoffman declined on Friday to say whether he took the pills. The 25-page ruling issued Friday states that Hoffman “does not contend that he ingested any of the pills.” The trial judge dismissed Hoffman’s claim, finding that it was “speculative and conjectural.” The judge also ruled the disclaimer clause applies to Hoffman because it was prominently displayed on the vendors’ website. Friday’s decision reverses that ruling and sends the case back to the trial judge.
Shaffer, the attorney for the vendors, called Hoffman a “professional plaintiff” who will have trouble proving that he didn’t read the disclaimer. “While we are disappointed that Mr. Hoffman will be allowed to go forward, we are pleased that the Appellate Division recognized the difficulty he will have proving his case due to the baggage he brings in his dual and conflicted role as class counsel [and] professional plaintiff,” he said.