December 4, 2018 -- A federal judge in Atlanta denied an attempt by a retailer of tainted Rhino male enhancement pills to dismiss a lawsuit accusing the company of false advertising and unfair competition.
This marks the first time a federal judge has weighed in on lawsuits filed by Outlaw Laboratory, LP, which makes competing products, under the Lanham Act against businesses accused of profiting from the illicit sales of male enhancement products known to contain sildenafil and other pharmaceutical drugs.
The lawsuits accuse the defendants of engaging in unfair competition and false advertising by selling falsely-labeled “all natural” and “safe” male enhancement pills that in reality contain the prescription drug sildenafil – the active ingredient in Viagra.
Gas station and convenience store operator ABCDP Inc., of Roswell, Georgia, was sued in federal court in May for its role in the sale of the pills. ABCDP sought to dismiss the claims on standing grounds, arguing that it was not legally responsible for the misleading statements on the products’ packaging, and that Outlaw did not prove it suffered any damage from the Rhino sales.
U.S. District Court Judge Amy Totenberg denied ABCDP’s motion on Nov. 28 explaining: “…Plaintiff has successfully pleaded the existence of (1) an injury in fact; (2) traceable to Defendant ABCDP’s conduct; and which (3) is likely to be redressed by a favorable judicial decision.”
“Indeed, a plain reading of Amended Complaint, in a light most favorable to Plaintiff, illustrates that ABCDP’s role in advertising, promoting and making available for sale Defendants’ male enhancement products, which allegedly contained false and misleading statements, directly resulted (at least in part) in Plaintiff’s economic and reputational injuries based upon the ‘diversion of business from Plaintiff to Defendants,’” wrote Totenberg, of the U.S. District Court for the Northern District of Georgia.
A trial date has not been set.
“The laws against false advertising and unfair competition make it very clear that the disseminator and benefactor of the statements – any entity that profits from consumers being intentionally misled — may be held liable for unfairly profiting over a legitimate competitor, as well as for any physical injuries resulting to unsuspecting people who consume these dangerous products,” said Robert Tauler, of Tauler Smith LLP.
“The Rhino products subject to the lawsuit do not list sildenafil, a prescription-only drug, on the label and seek to assure buyers with false statements, including that the products are ‘all natural,’ contain ‘no harmful synthetic chemicals,’ ‘no prescription necessary,’ and have limited side effects. Using Viagra without a doctor’s supervision, especially by those with underlying medical conditions, can result in death, serious penile injuries (blood clots and amputation, for instance), heart attacks, stroke and lifelong vision problems.
Tauler Smith LLP specializes in high-stakes commercial litigation representing both plaintiffs and defendants in a variety of areas, including business disputes, false advertising, the foreign corrupt practices act, and unfair competition.