The parties compete to sell portable handheld steam cleaners. Euro-Pro (seller of the Shark Steam Blaster and the Steam Mop) alleged that certain claims in Euroflex infomercials touting the handheld Monster 1200 violated the Lanham Act and New York consumer protection law. While Euro-Pro’s and other steam cleaners clean with steam only, the Monster 1200 allows users to combine steam with disinfectant cleaning solution, “Clean Blast.” Euroflex claimed that this “exclusive technology” made the Monster 1200 more effective than “ordinary steamers.” Clean Blast is a version of a broad spectrum cleaning solution registered with the EPA.
Euro-Pro challenged four general types of claims: “(1) the ‘EPA Tested and Approved Claims,’ such as ‘EPA tested and approved so you know it's safe;’ (2) the ‘Efficacy Claims’ or ‘Sanitizes on Contact Claims’ such as ‘kills 99.99% of all germs and bacteria on contact’ and ‘truly sanitizes on contact;’ (3) the ‘Superiority Claims’ such as ‘kills all the germs and bacteria that it comes in contact with, and regular steam just doesn't do that’ and ‘this is the only one of its kind; it’s the only one that can sanitize’; and (4) the ‘Safety Claims’ such as claims the Monster 1200 is ‘completely safe’ and ‘harmless.’”
Initially, the court concluded that Euro-Pro was entitled to a presumption of irreparable harm because the infomercial at issue was a comparative ad, even though it didn’t mention Euro-Pro by name. Euro-Pro was an “obvious” competitor, the market leader, and its products resemble those shown in the infomercial as examples of “ordinary steam cleaners.”
On the EPA Tested and Approved Claims, Euro-Flex argued literal falsity because the EPA doesn’t test consumer products and didn’t approve the Monster 1200, only approved the registration of Clean Blast disinfectant as an antimicrobial pesticide regulated by FIFRA. Euroflex argued that the infomercial made clear that the EPA claims only applied to the disinfectant solution.
FIFRA requires pesticide sellers to register with the EPA, submitting all clais to be made for the pesticide as well as a description of the tests on which such claims are based. The EPA will only register a pesticide if it determines that the pesticide won’t cause “unreasonable adverse effects on the environment.” But registration isn’t a performance standard, and the EPA conducts no independent tests or studies. EPA approval isn’t an endorsement or a safety finding.
The court determined that any claims that the Monster 1200 or Clean Blast were “EPA tested” were literally false. The “EPA approved” claims were also literally false, even though onscreen text stated “EPA approval applies to Clean Blast only.” A disclaimer or contradictory claim can’t remedy a facially misleading claim when the disclaimer is in small text or is difficult to read, as here. In context, the EPA approval claims necessarily implied a false message of approval of safety and efficacy of Clean Blast used in conjunction with the Monster 1200. For example, a spokesperson stated “And the great thing is, it's U.S. EPA tested and approved so you know it's safe,” while the Monster 1200 was shown cleaning outdoor cooking equipment.
On the efficacy claims, the parties disputed the literal falsity of the claims “kills 99.99% of germs on contact” and “sanitizes on contact,” which the court interpreted to mean “almost instantly.” Even though there are formal definitions of “sanitization” for EPA-registered disinfectants, consumers’ interpretations govern. General claims like “sanitizes” are subject to more than one reasonable interpretation about when “cleaning” becomes “sanitizing” and thus can’t be literally false. (Though this strikes me as the right result in context, I think “can’t be literally false” is probably an overstatement; a product made of dog spit probably doesn’t “sanitize,” though I’m willing to be surprised.)
The court determined that the efficacy claims were establishment claims, even though they didn’t use the words “tests prove.” At the outset of the infomercial, the spokesperson said, “our engineers have put the Monster through hundreds of tests.” Moreover, Euroflex did conduct tests before putting out a revised version of the ad, which is relevant to whether the infomercial impliedly stated that its claims were based on tests. (I’m willing to go with this, because it indicates an awareness on Euroflex’s part that the claims being made were of the type that consumers only expect to be made when there are tests to back them up.) Finally, in context, the “Sanitizes on Contact” claims were implied establishment claims because they were joined with superiority claims; included references to specific bacteria such as mehticillin resistant staphyloccus aureus noroviris, necessarily implying scientific testing; were asserted by a spokesperson in a white lab coat in a room identified by onscreen text as the “Euroflex Testing Lab”; and were graphically depicted with animations and diagrams of the sanitizing process.
Thus, Euro-Pro could win its claims by showing that the tests at issue were unreliable as well as by showing direct falsity. It did both. Euro-Pro’s expert criticized the tests, but her criticisms fell short of showing unreliability. Euro-Pro’s own tests purported to show that the Monster 1200 couldn’t kill 99.9% of bacteria under slightly more rigorous test conditions, but didn’t provide sufficient information on the percentage of bacteria actually killed. Thus, the court refused to enjoin these claims on the current record, though it promised further scrutiny at trial. The court was dubious of the “sanitize on contact” claims as overstating the Monster 1200’s capabilities, but it also found Euro-Pro’s failure to submit timely, detailed test results of its own troubling.
Likewise, Euro-Pro failed to establish that the superiority claims were literally false. They were by and large paired with general claims of sanitizing capability, such as “you can truly sanitize your entire bathroom--no other steam cleaner in the world can make that claim.” Because of the unfixed meaning of “sanitize,” Euro-Pro needed evidence that other steam cleaners could “sanitize” according to the definition used by consumers
Finally, Euro-Pro argued that the infomercial’s claims that the Monster 1200 was “completely safe” and “harmless” were literally false. The label of the disinfectant solution cautions that the substance is “HAZARDOUS TO HUMANS & DOMESTIC ANIMALS,” and Euroflex’s own evidence showed that tests submitted to the EPA revealed mild skin and eye irritation in animals. Defendant’s expert concluded that “prudent use” of the Monster 1200 posed “relatively low risk” to consumers.
Euroflex’s evidence showed that the Monster 1200 was relatively safe, but not “completely safe and harmless for children as well as pets,” so the court enjoined Euroflex from claiming that the Monster 1200 was “absolutely,” “completely,” or “entirely” safe. The court also noted that the infomercial was disingenuous in distinguishing between the “safe” Monster 1200 and “harmful chemical cleaners,” since the cleaning solution was also a chemical solution; moreover, the infomercial’s depiction of the Monster 1200 being sprayed “casually overhead” was inconsistent with “responsible use of a product that uses a known eye irritant.” However, those claims and depictions were misleading at most, and to enjoin them would require evidence of consumer perception. (Not quite sure about the overhead spraying part of that—I might go with falsity by necessary implication.)
If I were Euroflex, I’d be pretty careful redoing the infomercial, given the court’s caution here.
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