A frequent issue that comes up in false advertising cases is whether a marketer is falsely claiming that its product has been endorsed or approved by a government agency. For example, the FTC recently sued a marketing agency, alleging that advertising produced by the agency appeared to provide information about how to obtain federal COVID-19 stimulus benefits, but which, in reality, lured consumers to a used car sale. We also recently blogged about a lawsuit where the plaintiff claimed (unsuccessfully) that a competitor's advertising for "prime" pork misled consumers about whether the USDA grades pork (which it does not). Here's a recent case from federal court in Delaware that wrestles with a similar (and timely) issue.
Halosil International, a manufacturer of disinfectant fogging devices, sued a competitor, Eco-Evolutions, for false advertising under the Lanham Act and for other claims. (A disinfectant fogging device is a machine that you'd use at a hospital or other business to spray disinfectant into a room in order to decontaminate it.) Halosil challenged claims by Eco-Evolutions that its CURIS System is "The Only System Validated to kill c.diff in a 3 part soil load." (Clostridium difficile -- or c.diff -- is a bacteria that can cause infections ranging from minor to life-threatening.) Halosil argued that the "validated" claim is literally false because the claim was not validated by the Environmental Protection Agency.
In order to find that the claim was literally false here, the court was required to decide, "first whether the claim conveys an unambiguous message and second whether that unambiguous message is false." The court explained that, "A ‘literally false’ message may be either explicit or conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated." But, importantly, the court emphasized that "only an unambiguous message can be literally false."
The federal court in Delaware granted summary judgment to Eco-Evolutions, holding that no reasonable jury could conclude that they company had advertised its product as having been validated by the EPA. The court pointed to the fact that, not only do the defendant's claims not mention the EPA, any federal agency, or any regulatory approval, "there is nothing about the context of these claims that would create such an implication."
Not a surprising result, I think. But, this case is still a good reminder -- particularly when talking about regulated products -- to avoid statements, seals, or other imagery that could falsely communicate that your claims have been approved by a government agency.
"only an unambiguous message can be literally false"