repeating a tested claim about later product editions isn't literally false without relevant differences between editions

Strategic Partners, Inc. v. Vestagen Protective Technologies, Inc., No. 16-CV-05900, 2017 WL 5951881 (C.D. Cal. Nov. 13, 2017)

Vestagen makes Vestex scrubs, a product made with a fabric containing a fluid barrier and antimicrobial agent that inhibits the growth of bacteria on the fabric. SPI sued for false advertising, and a jury returned a verdict in favor of Vestagen, finding that SPI failed to prove its false advertising case. (Previous discussion of SPI’s claims.) The court denied SPI’s motion for judgment as a matter of law/for a new trial.  Post-verdict JMOL is proper if the evidence presented at trial “permits only one reasonable conclusion, and that conclusion is contrary to” the jury’s verdict.  Here, there was evidence that could have favored Vestagen on each claim. 

Among other things, SPI argued that Vestagen changed the composition of the fabric used in Vestex scrubs in 2015, but continued to cite to a 2012 study as showing that Vestex scrubs reduce the amount of harmful bacteria on the fabric. SPI argues that “advertising is ‘literally false’ if it makes claims regarding the findings of a study wherein the study did not test the same product as advertised.” However, to take advantage of this rule, SPI would have to show that there were relevant design differences between the tested product and “later editions” of the same product.  “Both editions of the scrubs incorporated the Vestex antimicrobial technology. SPI cited no evidence showing that the change in fabric negatively affected its antimicrobial properties,” and indeed there was evidence to the contrary.

SPI also argued that Vestagen falsely advertised that “Vestex fabric is currently registered with the FDA,” even though the FDA does not permit registration of a fabric and the fabric itself is not in fact registered. But Vestagen introduced evidence that the surgical scrub that is made out of that fabric is registered with the FDA, and that it made the claim only in the context of the scrub. This was enough to allow the jury to reject a literal falsity argument.  Likewise, the situation didn’t justify a new trial.