A California district court has granted in part The Dial Corporation’s motion to dismiss claims in a case brought by disgruntled purchasers of the firm’s Dial for Men Magnetic Attraction Enhancing Body Wash, which plaintiffs say failed to attract women as advertised.

The class action revolves around label and marketing claims for the [Henkel AG & Co. KGAA]subsidiary’s “pheromone-infused” body wash, use of which – at least in the experiences of plaintiffs Robert Margolis and Frank Ortega – does not guarantee success in attracting a mate.

Claims at issue include statements that the body wash “leave[s] you smelling so good women can’t help but notice” and “will attract your woman like steel to a magnet.”

Dial also reasons with consumers that “it doesn't hurt to increase your odds,” and directs them to “stand back and watch the magic happen.”

The image of an electron cloud on product labeling suggests that the company’s claims have a chemical or scientific basis, according to the plaintiffs, whose lack of luck has them challenging the implication that pheromones can make a woman “more sexually receptive.”

The lovelorn plaintiffs say they were misled by the company’s marketing and suffered “economic injury” as a result of their purchases. Margolis bought the body wash on two occasions in Colorado, while the more optimistic Ortega purchased the product two or three times weekly for a year in California.

They assert violations of the Consumers Legal Remedies Act, Unfair Competition Law and False Advertising Law, among others.

Dial submitted a motion to dismiss all claims in the plaintiffs’ complaint. In a Aug. 23 court order, Janis L. Sammartino, a federal judge in the U.S. District Court for the Southern District of California, sides with Dial with respect to most but not all of the allegations in question.

Sammartino agrees with the company that many of the cited claims constitute non-actionable puffery. These include the magnet comparisons and “women can’t help but notice” claim.

“The Court cannot interpret the above representations as anything other than exaggerated advertising, blustering and boasting upon which no reasonable buyer would rely,” she states in the court document.

She takes a similar view on the proposition about increasing one’s odds with women and the promise of magical results. Such language amounts to “hyperbolic exaggerations which no reasonable consumer would interpret other than as playful marketing slogans, or claims based on subjective standards incapable of objective measurement,” she says.

The decision may send a positive signal to industry, which has witnessed a rise in class-action suits based on claims for products that fail to meet consumer expectations Also see "Claims Support, Consumer Dialogue Reduce Lawsuit Risk – Attorneys" - HBW Insight, 1 July, 2013..

Firms such asUnilever PLC, which has built its AXE franchise on helping guys to enhance their sex appeal and “get the girl,” may be particularly heartened by the decision. For its launch of the AXE Excite deodorant range in 2011, the firm claimed its use “will have your angel falling on the first encounter” Also see "Men’s Grooming Shift: Toiletries To Overtake Shaving In 2013" - HBW Insight, 15 October, 2012..

Science Remains To Be Substantiated

While the court order represents a small victory for Dial, the California district court is allowing plaintiffs to proceed with their allegations regarding other claims for Dial for Men Magnetic – namely statements concerning the product’s pheromones-infused formulation and the underlying science of male-female attraction.

The plaintiffs allege that a Dial website promoted the body wash with an animated singing molecule and accompanying language suggesting “that after a woman senses the product’s pheromones with her vomeronasal organ, she responds by releasing catecholamine, which triggers dopamine release, making her more sexually receptive to men.”

Having consulted a behavioral neuropsychologist, the plaintiffs hold that such a claim is demonstrably false because humans – unlike other animals – do not have a functioning vomeronasal organ.

They also challenge the idea that Dial for Men Magnetic body wash is pheromone-infused, as the active ingredient, androstadienone, is actually an androgen hormone, or steroid.

In the order, Sammartino identifies Dial’s claims of this sort as “factual statements based on the specific or absolute characteristics of the Products.” Unlike other targeted claims that lack any quantifiable parameters, these “are not mere puffery, but instead advertising that may be plausibly ‘false’ or misleading,” she says.

Dial will have to provide substantiation for its claims as the case moves forward, the order indicates.

The judge also has granted the plaintiffs leave to amend their complaint with regard to the allegations dismissed within 21 days of the order’s issuance.

Dial for Men Magnetic Attraction Enhancing Body Wash is available through mass retailers and online in plain, Clean-Rinsing and Moisture-Rich varieties. The product launched in 2009 Also see "Henkel Courts Young Men Chasing Women With Dial For Men Magnetic" - HBW Insight, 13 July, 2009..

Plaintiffs Suffer Setback In Suit Disputing “Magnetic” Dial For Men Claims

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