"Kids" in product name represents that product is safe for children to use

Mirza v. Ignite USA, LLC, 2020 WL 704791, No. 19 C 5836 (N.D. Ill. Feb. 12, 2020)

Ignite sells reusable beverage containers, coffee mugs, water bottles, and kids’ cups under the Contigo brand name. Plaintiffs bought Contigo Kids Cleanable Water Bottles. At some point thereafter, the bottles’ clear silicone spout detached, posing a choking hazard to plaintiffs’ children. Ignite issued a recall, offering to replace the lid on the water bottles but not any monetary relief.

  

Plaintiffs alleged that they relied and understood the name on the water bottles’ packaging, “Contigo Kids,” to represent that the bottles were safe for children to use, and that naming the water bottles “Contigo Kids” was false and deceptive in violation of several consumer protection laws.

The plaintiffs adequately alleged that they paid more for the water bottles than they would otherwise pay for a dangerous and defectively designed product, and that the recall didn’t provide minimal notice to class members or adequately compensate for the lost use of the product while a replacement lid was processed. The recall/free replacement didn’t obviate the Article III injuries here. A financial injury creates standing, and plaintiffs didn’t participate in the recall and thus didn’t get a product worth what they paid for it.

NY breach of implied warranty claims failed for want of privity; the exception for harmful products didn’t apply because plaintiffs weren’t alleging that they’d been physically harmed, only that they paid too much. NY unjust enrichment failed as duplicative of claims under New York’s GBL §§ 349 and 350, though Pennsylvania unjust enrichment claims survived.

Ignite argued that there was no Pennsylvania UTPCPL violation because, among other things, “Contigo Kids” wasn’t an actionable misrepresentation, and that no reasonable consumer would read the name to imply that the product was free from defect. The court disagreed.  Somewhat mushing causes of action together, the court appeared to consider only whether the name could be false (not misleading). But it doesn’t matter: plaintiffs sufficiently alleged a false representation as to a product’s characteristic, quality, or standard, as required:

The name “Contigo Kids” signals to consumers that the water bottles are designed for children. One would expect products made for children, at the very least, to be free from defects that would pose a choking hazard given the frequency of choking incidents for this age group. Absent a warning to the contrary, the presence of the term “Kids” on the label misleads consumers into believing that the product is safe for children. And contrary to Ignite’s argument, “[a] ‘literally false’ message may be either explicit or ‘conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.’ ”

… The name signals that the water bottles were made for children, and a necessary implication of products made for children is that they are safe for their use. Accordingly, a reasonable consumer looking for water bottles for her children could be reasonably misled by the product’s name.

[Note: consumer protection law hasn’t historically made, and really shouldn’t make, the Lanham Act’s false/misleading distinction, making reference to falsity by necessary implication unnecessary here. The plaintiffs sufficiently pled falsity or misleadingness.]

The same analysis also applied to NY GBL §349 and §350 claims, though fraudulent omission claims failed for failure to allege knowledge of the defect at the time of sale.