Monday, September 27, 2021

scientific studies don't have to be of D's product exactly for plausibility

Rosenfeld v. AC2T, Inc., 2021 WL 4197176, No. 1:20-cv-04662-FB-PK (E.D.N.Y. Sept. 15, 2021)

Rosenfeld alleged that defendants fraudulently marketed a mosquito control product called “Spartan Mosquito Eradicator.” Spartan’s advertising allegedly touted that the product will “significantly decrease[ ] [mosquito] population within 15 days,” and “[p]rovid[e] up to 95% mosquito control for up to 90 days.” It purported to work through three crucial ingredients: sugar, salt, and yeast. Spartan advertised that when the product is mixed with water and ingested by a mosquito, the “crystalline structure” of salt cuts the mosquito’s stomach, “causing it to rupture.” Meanwhile, the fermentation process of the yeast produces carbon dioxide inside the mosquito, also causing its stomach to rupture.

Rosenfeld alleged that none of this was true, as a matter of biology. He cited a number of studies to bolster his allegations.  

Although the allegation that “[S]partan is ineffective for mosquito control because it does not kill mosquitoes or decrease mosquito populations” was not in itself sufficient for plausibility, he cited scientific studies to support it. AC2T argued that, because those studies did not test Spartan’s particular chemical formulation, but rather tested only its constituent ingredients, they cannot support conclusions regarding Spartan’s effectiveness or establish the plausibility of the complaint.

Not so. Plausibility is the standard; a “claim that a product physically cannot work is a valid legal theory.” The theory was factually substantiated with “studies indicating that Spartan’s individual active ingredients cannot work in the manner that Spartan’s detailed advertising represents.” Their weight or interpretation was a question of fact that couldn’t be resolved on a motion to dismiss.



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