Stay ADvised: 2025, Issue 7

In This Issue:

• New Suit Claims "Scientifically False" Pheromone Ads Are "Pure" False Advertising
• After Defying Gravity and Court Orders, Shoe Company Agrees To Settle Charges
• Top VC Firm Alleges Competitor Falsely Advertises Plaintiff's Successes as Its Own
• Court Warms to Lululemon Arguments and Dismisses Greenwashing False Ad Suit

New Suit Claims "Scientifically False" Pheromone Ads Are "Pure" False Advertising

"It's not myth. It's science." So claims Pure Instinct in its ads for pheromone perfumes. But a new class action lawsuit claims it's not science but false advertising when Pure Instinct markets the effect of pheromones in its perfumes.

W.T.F.N. and Oui Lab market the Pure Instinct brand pheromone fragrances for men and women as scientifically proven to attract others via the inclusion of "human-compatible pheromones." These claims about the pheromones (imported from Italy, no less) are scientifically false, says plaintiff.

Pure Instinct's marketing promises that its products contain detectable pheromones that can attract others and are "capable of influencing moods, emotions and affections and triggering social responses." The brand continually reinforces these claims not only on product descriptions stating that the pheromones in the roll-ons will "enhance your natural magnetism and attraction" and "amplify your…desirability" but on the brand's own website and on its Amazon sales page.

The complaint alleges the company's deceptive labeling and marketing leads reasonable consumers to believe that the products contain pheromones that can attract others. That's a potent mix that drives up demand for the perfumes and offers nothing more than scent, alleges the plaintiff.

The complaint explains that, scientifically speaking, it is an impossibility for the perfumes to attract others because humans do not have a functional vomeronasal organ (VNO), the organ responsible for detecting pheromones, and therefore cannot detect pheromones. Research shows that the human VNO has no function in processing pheromones, according to the complaint. Genetic evidence allegedly reinforces these findings.

Even if humans had a functional VMO, Pure Instinct's representations that the pheromones in its perfumes are "human-compatible pheromones" are false and deceptive, adds plaintiff, because the listed "pheromones" in the product are not human pheromones at all. Again, all this is according to science, alleges plaintiff, who cites several studies in support of these arguments.

Additionally, allegedly the Pure Instinct product is misbranded under the Food and Drug Administration (FDA), which has found similar claims to be false and misleading or unsupported by scientific data. The complaint cites that the FDA has held that products claiming to "arouse or increase sexual desire" are classified as drugs and are misbranded until they receive FDA approval.

Key Takeaways

After Defying Gravity and Court Orders, Shoe Company Agrees To Settle Charges

Shoe brand Gravity Defyer Medical Technology Corporation (Gravity Defyer) has agreed to settle Federal Trade Commission (FTC) allegations that it made deceptive pain-relief claims about its shoes. The company's owner Alexander Elnekaveh will also pay $175,000 in civil penalties for violating a prior order barring pretty much the same types of claims at issue here.

The settlement stems from a 2022 complaint alleging that Elnekaveh violated a 2001 order prohibiting him from making claims that are not scientifically supported and using misleading testimonials.

In this case, the settlement bars Gravity Defyer and Elnekaveh from making any further claims without any substantiation that Gravity Defyer shoes relieve foot, knee, ankle, and back pain as well as other medical maladies like plantar fasciitis and arthritis.

Not only was Gravity Defyer and Elnekaveh's advertising in violation of the FTC Act, but it also violated the prior 2001 order prohibiting Elnekaveh and any of his business endeavors from falsely advertising products or making unsubstantiated representations. That previous order resolved FTC allegations that Elnekaveh and his company Gadget Universe falsely represented that its fuel line had a whole host of benefits, such as reducing fuel consumption and harmful emissions.

In ads online and on social media, Gravity Defyer advertised that its orthopedic shoes and their soles with "VersoShock technology" marketed to seniors are "clinically proven to relieve pain, including 85% less knee pain, 91% less back pain, 92% less ankle pain, and 75% less foot pain." Taking a page from the previous advertising efforts of Elnekaveh that landed him in hot water, Gravity Defyer also marketed the shoes using customer testimonials and made similar claims.

The company has no competent and reliable scientific evidence to back up its claims. A study it cited in support had significant flaws, including insufficient size and duration, and it relied on participants' subjective pain reports. It also failed to consider data from participants who wore the shoes without the VersoShock sole.

The new order prohibits Elnekaveh and his companies, present and future, from making health, efficacy, and safety claims that are not supported by competent scientific evidence. It imposes $175,000 in civil penalties stemming from violations of the 2001 order. The FTC said Elnekaveh did not then or now have a reasonable basis for making these representations and that they were false and misleading.

Key Takeaways

Top VC Firm Alleges Competitor Falsely Advertises Plaintiff's Successes as Its Own

High-tech venture capital firm and Zoom early investor TSVC has filed a false advertising lawsuit alleging that competitor Foothill Ventures is falsely advertising TSVC's successes as its own.

According to the lawsuit, Foothill Ventures, a direct competitor of TSVC, has been running an "aggressive" marketing campaign to take credit for TSVC's successes—including an early investment in the Zoom video chatting platform that put TSVC on the map. The lawsuit alleges that this marketing strategy is deliberately meant to cause confusion in a competitive marketplace that runs on reputation.

Plaintiffs allege that Foothill ran a marketing and advertising campaign falsely representing TSVC's "stellar" track record as its own. This allegedly included "routinely" falsely claiming TSVC investment decisions as its own, including investments in Zoom and other unicorns that allegedly occurred before Foothill was even formed.

Foothill also falsely advertised itself as the legal successor to TSVC's prior name (TEEC Angel Fund or TAM) to mislead investors into thinking it was associated with that successful brand where it wasn't, and where, in fact, those funds are still managed by TSVC. The company also allegedly even misrepresented the year it was founded to be able to take credit for certain successes.

TSVC alleges that Foothill made these misrepresentations on multiple marketing documents, including articles reposted on the widely popular Chinese social media platform WeChat, flyers promoting speaking engagements, in its executive summary, and even in its portfolio. It also launched a public relations campaign promoting the false statement that it is the "well known predecessor" to TAM.

TSVC states that the performance that Foothill is claiming for itself belong to TSVC and Foothill's actions have appropriated TSVC's brand and track record. Worse, this appropriation has caused industry confusion about who made which investments, in an industry where continued success is typically dependent on a successful track record.

At the core of this dispute is whether two individuals who are now with Foothill were involved in the two initial and very successful TSVC funds (whose investments included Zoom) as general partners or merely advisors. TSVC alleges that these individuals were never general partners of the first two funds and, therefore, should not be able to claim credit for its successes, especially because one of these individuals at Foothill making these claims was actually the only person at TSVC to abstain in the fund's vote deciding to invest in Zoom.  

TSVC alleges that Foothill's actions are false and misleading advertising and false designation of origin under the Lanham Act, as well as violations of California's Unfair Competition Law (UFL) and common law unfair competition.

Key Takeaways

Court Warms to Lululemon Arguments and Dismisses Greenwashing False Ad Suit

A federal district court has dismissed the class action lawsuit alleging that popular athleisure retailer Lululemon's "Be Planet" campaign was false advertising, finding that the plaintiffs did not have standing to sue.

The fashion brand's "Be Planet" campaign made extensive promises about Lululemon's commitment to sustainability and environmental protection. The campaign promised that the company has undertaken a "long-term strategy to become" more sustainable and equitable, and to minimize its environmental impact.

The complaint alleged that this marketing was nothing more than greenwashing, and that Lululemon's environmental claims about its products were false and deceptive or misleading. Plaintiffs averred that the company marketed its products as avoiding harm to the environment and "contributing to restoring the planet." They said the company made a number of promises as part of this campaign, including that 100% of its products would contain sustainable materials by 2025, that it would give consumers more options to recycle, and that it would reduce its carbon emissions and freshwater use significantly:

Yet these direct environmental claims about Lululemon's commitment to reducing the environmental impact of its products were deceptive, said plaintiffs. In reality, plaintiffs allege that Lululemon creates significant carbon emissions and landfill waste, and releases microplastics into the environment. In fact, the company's emissions have doubled since it began its "Be Planet" campaign, said plaintiffs.  

On dismissal, however, the court sided with Lululemon, finding that the plaintiffs did not have standing because plaintiffs failed to sufficiently allege an injury. Although they alleged a subjective belief that they paid a price premium for the product, they did not tie this price premium to Lululemon's alleged false advertising. The only "deception" that plaintiffs relied on were the goals and promises Lululemon made on a press release and on its website. To the court, plaintiff had failed to tie its reliance on Lululemon's marketing of its sustainability targets and other similar claims to any price premium they paid.  

Plaintiffs also lacked standing to receive injunctive relief as they alleged only a hypothetical rather than imminent injury. To pursue injunctive relief, plaintiffs would have to allege a likelihood that they would be harmed in the future. Yet the harm alleged was theoretical. They merely stated that they "would like" to purchase Lululemon's products "only if" they could rely on the truthfulness of its marketing statements about sustainability and environmental impact. This hypothetical claim dependent on Lululemon's marketing decisions was not alleging any threat of imminent injury as necessary to receive an injunction, said the court.  

Key Takeaways