An important false advertising decision recently came down in the Central District of California, Strategic Partners, Inc. v. Vestagen Protective Technologies.
Strategic Partners, Inc. ("SPI") alleged that Vestagen Protective Technologies ("Vestagen") made unsubstantiated advertising claims about the antimocrobial properties of its medical scrubs. SPI alleged that Vestagen relied on testing of a prior version of its product, not on testing of the new version, which was made with a different fabric.
The court was not convinced. As it turns out, both versions of Vestagen's scrubs incorporated the same antimicrobial technology, and SPI cited no evidence showing that the change in fabric negatively affected the antimicrobial properties. To the contrary, Vestagen introduced evidence showing that the fabric change would have only enhanced the scrubs' antimicrobial abilities. The court therefore found that Vestagen's advertising could only be false if SPI proved that there were "relevant design differences" between the tested product and the editions later advertised. Because they did not have this proof, their motion was denied.