showing falsity of a noncomparative "tests prove" claim

Strategic Partners Inc. v. Vestagen Protective Techs., Inc., 2017 WL 5897711, No. 16-CV-05900 (C.D. Cal. Jul. 31, 2017)

Vestagen sells specialty textiles for healthcare applications, while SPI sells medical apparel; their medical garments with antimicrobial fabrics compete.  Vestagen alleged the falsity of SPI’s statement in its website FAQ that the antimicrobial technologies it uses on its Certainty and Certainty Plus “start[ ] to work upon contact with unwanted bacteria,” rendering bacteria “ineffective immediately.”  Vestagen argued that this statement literally false because SPI only had test data taken twenty-four hours after the fabrics were inoculated with bacteria. SPI offered four declarations asserting that the statement was true, creating a material issue of fact. 

Vestagen argued that the lack of test data directly supporting the statement showed literal falsity.  While literal falsity can be shown by showing that product testing is “not sufficiently reliable to permit one to conclude with reasonable certainty that [it] established the claim made,” those cases involve comparative superiority claims, but this statement wasn’t a comparative claim, and there was no legal authority that such an ad needed proof through test data.

The inventiveness of lawyers is legendary, but this distinction makes no sense.  The rationale for the rule about showing the falsity of “tests prove” statements has nothing to do with comparative advertising.  It’s about scientific evidence and its greater credibility with customers; when consumers see a statement apparently based on scientific rather than anecdotal data, they have more reason to credit it.  Thus, “tests prove X” can be proved false either by showing “not X,” or by showing “tests don’t prove X”; either one will falsify the claim actually made by the defendant.

Regardless, the court ruled in addition that, based on the definition of “ineffective” and justifiable inferences in SPI’s favor, “rendering a bacteria cell ineffective immediately is not necessarily inconsistent with an inability to stop germs instantaneously.” The fabric could immediately render the cell incapable of replicating efficiently, or of not remaining viable as expected, even without killing it immediately.  Vestagen couldn’t prevail on this evidence at this stage.