Hims & Hers Motion to Dismiss FTC Pixel and ROSCA Case

Hims & Hers Health, Inc. has asked a federal judge to dismiss every count in the lawsuit that the Federal Trade Commission (FTC), the People of the State of California and the Utah Division of Consumer Protection filed against it over ad tracking and subscription billing. The telehealth company’s motion to dismiss, dated October 22, 2026, argues that the regulators ignored the company’s privacy policy and the payment disclosures shown in their own complaint. The case is FTC v. Hims & Hers Health, Inc., No. 3:26-cv-07871-VC, before U.S. District Judge Vince Chhabria in the Northern District of California.

The motion does not decide anything. The government’s allegations remain unproven, and Hims & Hers disputes them. For other telehealth sellers, the dispute is a test of two practices common on their own sites, advertising pixels on intake pages and recurring prescription billing.

What the FTC and the states allege

The complaint, filed July 29, 2026, brings nine counts. Three fall under Section 5 of the FTC Act and cover privacy claims, undisclosed data sharing with advertisers and intake practices. Three fall under the Restore Online Shoppers’ Confidence Act (ROSCA), the federal law on online sales with a negative option, meaning an offer that treats a customer’s silence as agreement to keep paying. The last three come under California’s False Advertising Law and Unfair Competition Law and the Utah Consumer Sales Practices Act. Los Angeles County Counsel Dawyn R. Harrison brought the California claims, according to a county announcement.

On privacy, the complaint alleges that Hims & Hers promised private and discreet care while sharing consumers’ health information with Meta and Snap. It says the company did so by uploading customer lists to match users to their accounts and by placing the Meta Pixel and Conversions API on its platforms, tools that “automatically tracked and disclosed certain Events to Meta.” The complaint also lists pixels from Microsoft, Google, Criteo, Pinterest, Reddit, TikTok, The Trade Desk, X and several other ad platforms on the company’s website.

On billing, the regulators point to intake screens that read “Due Now $0” and “Pay $0 today” and to ads offering a “free consult.” They allege those screens did not tell consumers that submitting the intake meant agreeing in advance to a charge and an automatic subscription as soon as a provider recommended treatment, and that the auto-renewal disclosure sat in small, low-contrast type below the final button. The complaint also describes an online cancellation flow, added in April 2023, that started from a button labeled “Add/remove items from order” rather than one that said cancel. The plaintiffs seek a permanent injunction, monetary relief and state civil penalties, including up to $2,500 per violation under each of the two California statutes.

Hims & Hers says its privacy policy disclosed the sharing

The motion, filed by Keker, Van Nest & Peters, says every visitor is directed to the company’s Privacy Policy and that consumers must acknowledge it when they create an account. According to the filing, the policy says Hims & Hers may share contact information and usage data, such as pages viewed, with marketing and advertising partners, warns that usage data may count as sensitive when it relates to health-related pages, and links to privacy settings for Meta and Google.

The company argues that the statements the complaint relies on, a former website FAQ that has not appeared since August 2023, two unidentified advertisements and two influencer posts calling the service discreet, describe the privacy of getting treatment online rather than a promise about data sharing. “An assurance that consumers may obtain treatment discreetly, without an in-person visit, is not a privacy policy,” the motion says.

The ROSCA fight turns on whether a negative option exists

ROSCA applies only to online sales made through a negative option feature. Hims & Hers argues that the complaint never identifies a contract with one, and that the historical contracts behind what it calls the FTC’s three-year investigation were fixed-term contracts paid in monthly installments. Installment payments, the company says, are not a renewal triggered by a customer’s silence.

The company also says the complaint’s own screenshot of checkout undercuts the billing theory. That screen, quoted in the motion, tells consumers that if medication is prescribed they are “purchasing an automatically-renewing subscription and will be charged $147 for your first 90 days supply and $147 every 90 days thereafter until you cancel,” and that refills ship 10 days early. The complaint calls that same line a buried disclosure. A promise to charge only after a prescription, the motion argues, is not a promise to ask for a second authorization.

On cancellation, Hims & Hers says customers could always cancel by phone, email or chat, that online cancellation reached most consumers in April 2023 and that mobile app cancellation followed. It notes the complaint’s own statement that a one-click cancellation option was offered in some jurisdictions, including California, and argues that ROSCA does not create a claim whenever a process could be simpler.

What telehealth sellers can take from the filings

Both sides are arguing over pages that many telehealth companies run in some form. The FTC’s case treats ads, influencer posts and FAQ answers as privacy promises that a policy page cannot override, and it counts customer-list uploads and server-side Conversions API events as disclosures alongside browser pixels. Hims & Hers argues that a clearly presented policy and an itemized checkout disclosure are enough. EC4IM has covered related ground in its report on FTC negative option rules for autoship brands and on telehealth checkouts that separate consult payment from pharmacy fulfillment.

Screenshots of intake and cancellation pages run through much of the complaint, and those are the same pages a card processor reviews before it approves recurring prescription charges, including for accounts arranged through Organic Payment Gateways for telemedicine processing.

When the court could rule

The motion was noticed for a hearing on January 7, 2027, at 10 a.m. in Courtroom 3 in San Francisco. Docket entries dated November 3 show an initial case management conference and new motion and hearing settings, and some case trackers now list the hearing as January 14, 2027. The court’s public docket could not be checked to confirm the change before publication. The FTC and the states will answer the motion in their own brief. If Judge Chhabria denies it in whole or in part, the surviving counts move toward discovery. If he grants it, the court could dismiss some or all claims, possibly with permission to amend.

Where the Hims and Hers case stands

Hims & Hers wants all nine counts thrown out on the grounds that its privacy policy disclosed advertiser sharing, its checkout spelled out the $147 charges and ROSCA does not reach fixed-term installment plans. The FTC, California and Utah say promises of private care and $0 intake screens told consumers something different from what the company did with their data and their cards. Until the judge rules, every allegation is unproven, and telehealth sites using pixels and auto-refill plans have a pending federal case built on pages much like their own.

Hims and Hers Asks a Judge to Toss the FTC Pixel and Subscription Case