Small number of consumer complaints insufficient to shake substantiation

In re Bayer Healthcare LLC and Merial Ltd. Flea Control Products Marketing and Sales Practices Litigation, 2013 WL 1150089 (N.D. Ohio)

Defendants moved for summary judgment on plaintiffs’ false advertising claims based on statements about defendants’ tick/flea killer products for pets.  The question was whether their advertising claims were adequately supported; they submitted as substantiation recent studies published in peer-reviewed journals. Thus, the court concluded, the only meaningful evidence of falsity would be evidence calling into question the validity of these studies, not complaints that the products didn’t work for each and every pet.  However, a large volume of consumer complaints relative to sales would call the studies into question and put defendants on notice that the studies were flawed: if “a significant percentage of customers reported that their pets had bites on their bodies in places other than where Defendants' products were applied, Defendants would no longer be reasonable in relying upon the studies validating their claims of topical dispersion over the bodies of pets.” 

Merial’s evidence was that .046% of customers complained about its products.  Plaintiffs argued that only one out of 25 dissatisfied customers would actually complain.  Even assuming this was true, the percentage would only rise to 1.15%.  Complaints about Bayer products were fewer.  Plaintiffs argued that there was some evidence that the products went into the animals’ blood, but that didn’t matter: it was irrelevant to whether defendants had reliable studies to back up their claims that the product dispersed over animals’ skin, and defendants didn’t make any claims about whether the product entered the blood. Thus, plaintiffs failed to show that defendants lacked a good faith basis for their ads claiming topical dispersion.