Monday, July 16, 2012

Apparently false demonstration still not literally false

Euro-Pro Operating LLC v. TTI Floor Care North America, 2012 WL 2865793 (D. Mass.)
Euro-Pro makes steam cleaners and vacuums, and sued its competitor TTI, which makes the Hoover brand, for false advertising under state and federal law, based on a TTI infomercial campaign promoting the Hoover TwinTank steam mop and WindTunnel vacuum with unfavorable comparisons to Euro-Pro’s Shark and Shark Navigator respectively.  The court denied Euro-Pro’s motion for a preliminary injunction.
Both the TwinTank and WindTunnel infomercials included demonstrations of Hoover products and competitor products in a structure described as “Hoover's Dirty House,” interspersed with testimonials. Euro-Pro alleged only literal falsity for purposes of this motion.
The TwinTank infomercial repeatedly stated that the TwinTank rendered other steam mops “obsolete,” sometimes explaining that this was because the TwinTank added cleaning solution, which was more effective than hot water alone.  At one point, the infomercial showed a warped wood floor, said that continual exposure to water could cause this, and said that the TwinTank could clean tough stains faster “so it's safer for your hard wood floors.” At others, the ad showed the TwinTank and the Shark side by side with the “obsolete” claim.  The court found that this claim was likely puffery: vague and general. The Pizza Hut case didn’t change the conclusion that “obsolete” was by itself puffery.  To the extent that the Pizza Hut court found actionable factual claims when read in context of other parts of the ad, that was after a full trial, not on the limited record available at the preliminary injunction stage.  And the court reviewed the other parts of the infomercial and wasn’t convinced that the ones to which Euro-Pro objected were literally false.  Anyway, the Pizza Hut court found only misleadingness, not literal falsity.
The court turned to specific issues, like the comparison between a TwinTank and a Shark used to clean tile soiled with permanent marker; the TwinTank removed the ink entirely while the Shark didn’t “because a steam mop that cleans with just steam can't get it completely clean.”  Euro-Pro argued that this was inconsistent with TTI’s acknowledgement that a steam-only setting can disinfect, but there was a difference between cleaning and disinfecting.  “It is entirely possible that a mop using water-based steam, and no other cleaning solution, could rid a surface of microorganisms potentially harmful to humans without completely ridding the surface of soil, dirt or other non-harmful debris free of microorganisms.”  The claim might be misleading, but Euro-Pro didn’t proceed on that theory.  Euro-Pro also argued that the permanent ink demonstration was literally false for lack of corroboration by independent testing, and that the demonstration must have been rigged.  The parties presented conflicting evidence on the test results, and argued about whether the test was performed fairly (for example, whether the TwinTank was moved across the stain more slowly or in more strokes than the Shark was).  But regardless, the court wasn’t persuaded that the demonstration conveyed an unambiguous message.   “Consumers could draw various messages from the demonstration, ranging from ‘the TwinTank always cleans any hard surface better than the Shark’ to ‘under certain conditions, the TwinTank may clean tile better than the Shark,’ to ‘the tile on the left has been stained more severely than the tile on the right.’”  Given these messages, none of which were necessarily implied, there couldn’t be literal falsity. 
Unfortunately, the court has closed its eyes to the realities of ad communication.  This type of dissection of an ad message leaves essentially nothing within the category “literally false.”  No reasonable consumer would expect the ad to be comparing differentially stained tiles—that’s the definition of an unfair comparison, and the consumer doesn’t want to know that the advertiser’s product does better on a less stained tile than the competitor’s does on a more stained one; the consumer wants a head-to-head, relevant comparison.  At best, the court has identified a message that might be inferred by a skeptical consumer who thinks the company is trying to fool her—which is not how courts are supposed to analyze ads, since the whole point is to protect consumers against false factual representations rather than requiring them to be skeptics about the truth of claims conveyed by ordinary logic.  (Indeed, “this car gets 55 mpg” might not be making a literally falsifiable claim according to this view if the consumer thinks “this ad might have rigged the tests.”)  Likewise, “under certain conditions” hides the very question at issue: the consumer wants to know how the products perform under the same conditions, whatever those conditions are, and Euro-Pro’s evidence went directly to that point.  Its evidence of falsity might not have been sufficient at this point, but the allegedly false statement is incredibly clear: given the same stain, the TwinTank performs better.
Regardless, the court refused to go further.  “Certainly, Euro–Pro may have at the very least succeeded in casting at least some doubt on the accuracy of demonstration by, for example, pointing out that the ‘before’ version of the marker-stained tile placed next to the Shark is likely not the same tile shown in the ‘after’ version.”
before picture with small squiggle

after picture with larger squiggle

In these pictures, it is pretty clear that the marker squiggle shown with the Shark differs before and after—they have different numbers of peaks.  But the burden of showing misleadingness was on Euro-Pro, and it hadn’t provided evidence on that point.  (I wonder what discovery would show about the apparent switch in tiles.  I wonder what a jury might think about that.)
Euro-Pro also objected to a comparison showing the TwinTank v. the Shark cleaning auto grease.  While the TwinTank removes the grease entirely, the Shark doesn’t, and the host says, “even though mine [the Shark] is on ‘Scrub,’ it appears as if it could actually be on ‘Smear,’ because once I'm through and I smeared it, my mess is worse than what I started with.”  Euro-Pro’s arguments were similar as with the ink, and the court’s reactions also.  “The grease demonstration neither explicitly states nor necessarily implies a specific unambiguous message and thus Euro–Pro does not at this stage of the litigation appear likely to prevail on its assertion that the demonstration is susceptible to a literal falsity claim.”
Next, Euro-Pro argued that four sections of the WindTunnel infomercial falsely touted the WindTunnel’s suction power in a sealed, airtight environment.  For example, the ad showed the WindTunnel purportedly using its suction power to collapse five-gallon water cooler jugs connected together with gaskets, after a host had first used a hammer on the jugs to show how tough the jugs were.  The ad also showed the WindTunnel lifting 120 pounds with suction, with a warning “Gasket added do not try this at home” and a host stating, “if the Hoover WindTunnel Air's suction can lift 120 pounds, imagine how clean your home will be.”  And the WindTunnel supposedly stuck itself to a wall through suction (again with the gasket added, do not try this at home warning).  The ad then transitioned to the product’s cleaning performance on floors.
Euro-Pro argued literal falsity because these claims purported to indicate something about actual performance, but were “unrealistically ideal.”  Its evidence suggested that the performance shown “was only possible under sealed suction conditions,” which didn’t reflect the real world.  But the infomercial, the court ruled, made clear that the demonstrations were conducted under specialized and ideal conditions.
Euro-Pro then challenged the WindTunnel infomercial’s comparison of the WindTunnel, a Shark Navigator, and a third vacuum trying to vacuum under a chair.  The Shark Navigator was “even worse” than the third in its inability to fit while its handle was vertical or when the handle was parallel to the floor.  The host concluded, “unless you actually like moving furniture, you need to get a Hoover WindTunnel Air.”  Euro-Pro argued that this was false because the host failed to tilt the Shark’s handle to the left, which would have allowed it to fit under low clearances.  This allegedly failed to comply with industry standards for testing.  “This Court's role, however, is to evaluate whether the infomercial sections at issue violate the Lanham Act, not industry standards.”  The infomercial didn’t say it was using any specific industry standards, nor was that a necessary implication.  And (making the same mistake as before) “consumers could draw various messages ranging from the message most feared by Euro–Pro, to wit, ‘the Shark Navigator is unable to vacuum under chairs 11.5 inches or lower,’ to the message that Euro–Pro asserts best explains what actually happens during the demonstration, to wit, ‘in order to vacuum under chairs 11.5 inches or lower with a Shark Navigator, you'll need to do more than simply lower the handle—maybe consider twisting it to one side.’”   
The next alleged WindTunnel falsity purported to show that the HEPA filter in the WindTunnel was more durable than the filters in two competing products.  One host showed the Shark Navigator’s filter and said it was made of foam rubber, then tore it in half.  “How long do you think that's gonna last?”  By comparison, another host said of the WindTunnel filter, “there's a complete 360–degree seal around this super strong honeycomb material that is fully washable.” He twisted the filter back and forth.
Euro-Pro argued that the WindTunnel didn’t, as claimed, capture 99.97% of the allergy-causing dust, pollen, and pet dander that enters the vacuum.  Its evidence of independent testing confirmed as much.  But the filter might trap 99.97% of those materials that pass through the filter, and the infomercial didn’t assert more than that.  “The specific quotation is ‘[t]he Hoover WindTunnel Air has a filter with HEPA media. It captures 99.97% of allergy-causing dust, pollen and pet dander.’  The term ‘it’ in the latter sentence can clearly be read to refer to the filter with HEPA media, not to the WindTunnel; the infomercial does not expressly require nor necessarily imply an alternate reading.”  (This must rest on the idea that, in theory, what consumers care about could be the filter that they never use alone, not the product as a whole; we are now in “it depends on what the meaning of ‘is’ is” territory.)  No literal falsity.
Euro-Pro also didn’t like tearing the filter in half; it pointed out that the filter torn in half was the Shark’s pre-motor filter, not the wholly separate HEPA filter, which was the appropriate comparator.  TTI responded that it also demonstrated the WindTunnel’s pre-motor filter, comparing apples to apples.  (While telling consumers that it was comparing oranges to oranges.)  “Although the infomercial switches quickly from discussing the WindTunnel's HEPA filter while showing an artist's rendering of the HEPA filter, to comparing the ‘dust-trapping filters’ included in the WindTunnel and its competitors, without informing consumers that the WindTunnel's dust-trapping filter is distinct from its HEPA filter, the filter demonstration does not appear to include any explicit statements or necessarily implied messages that are literally false.”  Okay, that’s not even trying; showing a picture and discussing a completely different thing is a classic example of falsity by necessary implication, or even straight-up falsity.  The court just doesn’t think this case is worth its time.
Euro-Pro also challenged Hoover’s claim that the WindTunnel had a “super-sized capacity dust cup which holds 25% more dirt than the competition.”  Measured according to American industry standards using cork pellets, Euro-Pro argued, the WindTunnel’s dust cup was only 9% larger than the Shark Navigator’s dust cup.  TTI argued that it was better to use the European industry standard using elastomeric pellets, and that its cup capacity was 25% larger on average using that standard.  Euro-Pro pointed out that the 25% figure made no mention of averages, that even under the European standard the dust cup wasn’t 25% larger than the Navigator’s (already identified as the competition in other parts of the ad), and that “Hoover’s self-identified class of vacuum,” which was never defined in the infomercial, included a Euro-Pro product with a larger dust cup.
The court was slightly more impressed by this argument.  “The asserted figure is much more specific, and much more readily falsifiable, than general claims regarding obsolescence or than demonstrations asking consumers to ‘imagine’ what the demonstration might imply about a product’s use in the home.”  Still, the court found this wasn’t literally false.  The 25% claim could be absolute, or just average.  “The absence of any mention of averages reinforces (but does not compel) Euro-Pro’s preferred reading, and the opacity of the unmodified phrase ‘competitive class’ does little to help (but does not preclude) TTI’s preferred reading; the Court’s role, however, is not to choose which reading is sounder but to determine whether, after ‘considering the advertisement in its entirety,’ one reading is so obvious that ‘the audience would recognize the claim as readily as if it had been explicitly stated.’”
Finally, Euro-Pro argued that part of the WindTunnel infomercial purporting to show children putting together the competing vacuums was false.  Five- and six-year-old children competed, and the child putting the WindTunnel together finished first.  Euro-Pro argued that Hoover admittedly coached each child and gave them multiple opportunities to practice, but didn’t disclose this.  But that wasn’t literally false. 
Even if Euro-Pro had established literal falsity, irreparable harm wouldn’t be presumed in the absence of directly comparative claims, and only some of the challenged claims were directly comparative; the assertion that cleaning “with just steam” is incomplete wasn’t directly comparative, for example (I don’t get that, since Euro-Pro cleans with just steam).  Euro-Pro’s evidence of irreparable harm was too speculative.  Though during the course of the litigation, Target and Sears decided to discontinue some Shark products to “make room” for the TwinTank, Euro-Pro didn’t show that this harm was related to the infomercials.  In fact, the Shark models dropped by Target weren’t the ones in the ads, and Sears stopped ordering Sharks before the first ad aired.

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