Kennedy Industries, Inc. v. Aparo, 2005 WL 3752270 (E.D.Pa.)
Plaintiff sells skin protection and skin cream for wrestlers; its product protects skin from chafing and the FDA has determined that its main ingredient is safe as a skin protectant. Defendant Driving Force (Aparo is its president) sells competing products under the brand “99.”
Plaintiff sued defendant and several distributors for false advertising under the Lanham Act.
Driving Force attacked plaintiff directly in comparative advertising, stating “Kill or be Killed” and offering a graphic comparison:
| 99 | Kennedy Skin Protectant |
Kills Ringworm | YES | NO |
Kills Impetigo | YES | NO |
Kills Staph | YES | NO |
Kills Strep | YES | NO |
Kills E-Coli | YES | NO |
Kills 99.9% of harmful bacteria | YES | NO |
Kills Athlete’s Foot | YES | NO |
Kills Planter’s [sic] warts | YES | NO |
Hours of Kill Power | YES | NO |
In addition, the FDA has not approved benzethonium chloride as a skin protectant, but rather lists it as a substance not shown to be safe and effective as a skin protectant and antifungal.
The court appears to be treating most of the claims as necessarily implied establishment claims, which makes sense, as consumers are likely to believe that tests support medical/percentage claims of this sort, and possibly that the FDA has approved such claims. (The "special formulation for wrestlers" claim is not like the others, but that was shown to be false, too, since it was just a general product relabeled for wrestlers.) Alternatively, the court invoked the doctrine of Novartis Consumer Health v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578 (3d Cir.2002), that completely unsubstantiated claims are literally false.
Comment: In recent years, “falsity by lack of any evidence” has joined “falsity by necessary implication” as a way of decreasing the burden on plaintiffs challenging shady ad claims. The reckless claims here – which implicate public health – illustrate why courts are attracted to such doctrines.
As of Feb. 14, 2006, at least one site was still advertising that Driving Force’s 99 Antimicrobial Skin Sanitizer “is the only product specifically formulated for grapplers that actually kills harmful bacteria on contact.” The claims Driving Force makes for its 99 line on its site are now substantially more limited:
- Non-greasy
- No Alcohol Formulation - no sting!
- Non-aerosol can; safe for travel
- Non-Flammable
- Dye and Fragrance Free
A far cry from preventing VRE!
1 comment:
Brilliant false advertising of your own. The bottle of 99 you show is the post-injunction label. Not a thing faulse on that label.
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