Radio Systems Corporation sells a line of PetSafe branded electric collar products for pets.  According to the allegations in a lawsuit against the company, Radio Systems promotes its "PetSafe" products as "safe."  For example, the packaging for the Pawz Away Outdoor Pet Barrier states that the product "safely keeps pets away from flowerbeds, gardens, pools and more."  

Why was there a lawsuit?  A consumer alleged that the PetSafe collar he used on his dog actually injured the dog.  The consumer charged that, instead of being "safe," as advertised, the collar hurt the dog by burning holes in his dog's neck.

The consumer alleged false advertising and other claims under California law.  Radio Systems moved to dismiss on various grounds, including that its "safe" claim was puffery, and even if it were understood to be an actual claim, reasonable consumers would not be misled by it.  The court denied the motion.  Here's why. 

Is "safe" non-actionable puffery? 

Advertisers are generally required to ensure that their product claims are truthful and backed up by appropriate proof.  A representation in usually considered to be a "claim" requiring substantiation when it is objectively provable and material to a consumer's purchasing decision.  (Speaking of substantiation, ICYMI, check out last week's big announcement from the Federal Trade Commission on substantiating product claims.)   

On the other hand, a representation is normally considered to be non-actionable "puffery" when it is a hyperbolic statement of opinion that is neither provable nor disprovable and that would not be material to consumers when deciding whether to purchase a product.  It's the difference between advertising that a pick-up truck has "class leading towing capacity" and that the truck is "fun to drive." 

Here, the court defined puffery as "generalized, vague and unspecific statements upon which a reasonable consumer could not rely."  The court explained that, "The distinguishing characteristics of puffery are vague, highly subjective claims as opposed to specific, detailed factual assertions."  The court noted, however, that representations that address product attributes that are important to consumers are generally not puffery.  The court further explained that, "Representations concerning the health and safety effects of products are ordinarily important to consumers such that false advertising claims based on them should survive dismissal." 

Denying the motion to dismiss on the grounds that "safe" is puffery, the court wrote, "Defendant's representations of safety are precisely the kind of 'factual assertions' about product attributes upon which a reasonable consumer may rely --and upon which Plaintiff allegedly relied -- in deciding [to] purchase the Products." 

Will "reasonable consumers" be misled? 

Radio Systems also moved to dismiss the false advertising claim on the grounds that its representation that its products are "safe" are not likely to deceive a reasonable consumer.  The company argued that consumers wouldn't assume that its products are risk-free because the packaging and product manuals disclose the relevant safety risks, including skin damage. 

The court didn't buy the argument, however.  The court explained that courts reject the notion that "reasonable consumers should be expected to look beyond misleading representations on the front of the box to discover the truth in small print on the side of the box."  

Hernandez v. Radio Systems Corp., 2023 WL 2629020 (C.D. Cal. 2023).