With some days off coming up for the holidays, I've been thinking about fitting in some racquet sports.  This seemed like a good time, then, to talk about pickleball. 

Joola sells pickleball paddles.  According to the allegations in a lawsuit brought in federal court in Florida, Joola submitted several of its models to USA Pickleball, the national governing body for the sport of pickleball in the United States, for approval.  Those models were approved.

Here's where things went wrong.  After receiving approval for those paddles, Joola allegedly produced other models of pickleball paddles that were not submitted for approval to USA Pickleball, but still marketed them as “USA Pickleball Approved.”  Apparently, due to an “administrative error,” Joola submitted the wrong paddles for certification.  Soon after the unapproved paddles went on sale, USA Pickleball notified Joola that those additional paddles failed its testing and would not be certified.  

A consumer who purchased the unapproved paddles sued, alleging false advertising and other claims under Florida law.  In order to state a claim for deception, a plaintiff must show that there has been “a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances to the consumer's detriment.”  

In denying Joola's motion to dismiss the false advertising claim, the court easily found that the plaintiff had properly alleged a false advertising claim.  The court wrote that the plaintiff, “properly pleads a deceptive act because, taking the complaint as true, Joola marketed and sold the [paddles] that bore the USAP stamp of approval even though the [paddles] were never submitted to USAP for testing.”  The court explained, “Certainly, improperly labeling a product as certified by USAP causes a consumer who wants to purchase a USAP certified paddle to purchase a paddle they otherwise would not have purchased.”  

Why is this very straightforward case important?  Other than perhaps as a reminder to try out pickleball if you haven't tried it yet (or, even better, the fast growing sport padel, which uses a completely different type of paddle), it highlights the importance having a process in place to properly manage the seals and certifications that you're using in connection with the marketing of your products.  Seals and certifications are advertising claims just like the other claims that you make and you're responsible for ensuring that those claims are properly substantiated. 

What are some things to keep in mind?  First off, of course, don't promote a product as being certified or approved if that wasn't the product that received the certification.  Second, if the product gets updated, be sure to resubmit it for certification.  Third, consider how long the certification is good for.  Some certifiers require certification at regular intervals.  Others only grant permission to use the certification only for a limited period.  Fourth, consider what claims are being communicated by the certification.  Just because you've received a certification doesn't necessarily take away your obligation to ensure that the claims that are being communicated are truthful.  Fifth, consider whether there's a relationship with the certifying organization that needs to be disclosed.  The FTC's Endorsement Guides can help you sort that out – and can take you through some other important considerations as well when determining whether the certification is reasonable to rely on and promote. 

Matus v. Sport Squad (S.D. Fla.  December 17, 2024)