Unsuccessful False Advertising Claim Based On Misrepresentations In Commercial E-Mails.

Business and Professions Code section 17529.5 states it is unlawful to advertise in a commercial email when it contains or is accompanied by falsified, misrepresented or forged header information. The plaintiffs here brought an action under that statute on the theory the advertiser “sent them unsolicited commercial email advertisements purporting to be from ‘Proactiv Special Offer,’ ‘Wen Hair Care,’ ‘Proactiv Special Bonus Deal,’ ‘Wen Healthy Hair,’ ‘Wen by Chaz Dean,’ ‘Proactiv Bonus Deal,’ ‘Proactiv Bonus Gift,’ and ‘Proactiv: Special Offer,’” which are not names or registered fictitious business names of existing entities, and are not traceable to defendant via a WHOIS database search. Plaintiffs also alleged the “subject” lines of the emails asserted the recipient was entitled to a free or complimentary gift, without mentioning the gift was contingent upon a purchase. The trial court sustained defendant’s demurrer without leave to amend. In affirming, the appellate court stated: “We hold a header line in a commercial email advertisement does not misrepresent the identity of the sender merely because it does not identify the official name of the entity which sent the email, or merely because it does not identify an entity whose domain name is traceable from an online database, provided the sender’s identity is readily ascertainable from the body of the email, as was the case here.” (Rosolowski v. Guthy-Renker LLC (Cal. App. Second Dist., Div. 3; October 29, 2014) 230 Cal.App.4th 1403, [179 Cal.Rptr.3d 558].)