(CN) - A New Jersey appeals court reinstated a class action accusing the makers of Herculex "pre-performance wipes" of falsely touting the erection-inducing qualities of a useless concoction of "water, oil, soap hardener, hot pepper and sweetened coffee."
Lead plaintiff Harold Hoffman said he bought Herculex based on advertisements that the product contained ingredients "that are quickly transported through the tissues of the penis, causing a surprisingly large erection to occur in no time at all!" The ads allegedly touted the product's ability to "induce the biggest erections of your life" and "cause female partners to experience spine-quaking orgasms."
Hoffman sued Hampshire Labs and Video Age for violations of the Consumer Fraud Act, claiming Herculex didn't live up to its promises.
The defendants moved for summary judgment, in part because Hoffman allegedly filed suit before receiving his shipment of Herculex.
Hoffman insisted he received the product first, but said "it hardly matters," because his lawsuit was based on the ingredient list, which includes polysorbate, sodium lactate glycerin, saw palmetto, capsicum, aspartame and caffeine.
He claimed that polysorbate is "an oily liquid used in cosmetics"; sodium lactate glycerin is "used to harden soap"; saw palmetto is "an unregulated product" that's "sold by pseudo-scientists and other charlatans"; capsicum "may take the form of cayenne pepper" or similar spices; and aspartame is "an artificial sweetener."
Hoffman said he "reached the conclusion that water, oil, soap hardener, hot pepper and sweetened coffee were not going to induce anything approximating the promises and representations made by defendant[s] concerning the product."
Dismissing the lawsuit, the lower court found Hoffman's claims lacking for several reasons, including his failure to prove that Herculex had not lived up to expectations because he never actually used it.
The appeals court acknowledged that a consumer doesn't have to use a potentially harmful product to sue for false advertisement, but held that Hoffman failed to sufficiently plead his case.
Instead of affirming dismissal, the court remanded with instructions to give Hoffman leave to amend his complaint.
"If plaintiff elects to amend his complaint but fails to include specific facts to address the deficiencies noted herein," Judge Yannotti wrote, "the complaint should be dismissed with prejudice."