A buyer of Nutraceutical Corp.’s Cobra Sexual Energy claims that the sexual enhancement supplement is nothing more than snake oil and is asking the Ninth Circuit to reverse an order decertifying a class of buyers alleging false advertising.
Plaintiff Troy Lambert’s attorney argued to a three-judge panel that U.S. Judge Andre Birotte Jr. ignored California law when he decertified the class. The law states that a fair and sufficient damages model can be assembled when putative class knows the defendant profited from revenues of a fraudulent product.
Lambert and another buyer of Cobra Sexual Energy, Frank Ortega, filed a lawsuit in August 2013 in California federal court, claiming the dietary supplement promoted as an “aphrodisiac” didn’t actually enhance their sexual experience. U.S. Judge Audrey B. Collins granted class certification in June 2014, despite defendants’ claims that individual damages would vary greatly because some consumes of the product claimed to enjoy benefits of the supplement.
Shortly thereafter, Ortega’s claims were dismissed with prejudice after he was found to have made false claims under oath. Lambert became the sole plaintiff. The case was transferred to Judge Birotte, who decertified the class in early 2015, raising issues with Lambert not being able to calculate classwide damages.
In recent years, the Food and Drug Administration (FDA) has strengthened its efforts to crack down on dietary supplement makers who claim their products can treat or cure conditions or diseases, and who manufacture products with hidden drug ingredients that can pose risks to consumers.