"tested" can misleadingly imply high performance on test

Carder v. Graco Children’s Products, Inc., --- F.Supp.3d ----, 2021 WL 3909953, No. 2:20-CV-00137-LMM (N.D. Ga. Aug. 31, 2021)

Plaintiffs from fifteen states alleged that Graco made false and misleading representations about two models of children’s car seats, specifically marketing them as being (1) “side-impact tested” and (2) safe for children as small as thirty pounds and as young as three years old. Graco allegedly knew since 2002 that the seats didn’t appreciably reduce the risks associated with side-impact collisions (and that there are no federal safety standards for side-impact testing); that Graco’s own testing didn’t show that the seats were safe in side-impact collisions; and that the seats weren’t safe for children under forty pounds or younger than four years old.

A couple of points: The claims didn’t fail under Rule 9(b) even though some plaintiffs didn’t plead the exact model they purchased or the exact time, date, and price of their purchases; those details aren’t required to satisfy Rule 9(b), which requires specificity about “the particulars of the allegedly misleading statement itself, not .. the circumstances of the plaintiff’s conduct in reliance on that statement.”

Could the advertising mislead a reasonable consumer? Graco argued that its statements were true, but the court accepted that, “at the very least, reasonable consumers could believe that Booster Seats advertised and represented as ‘side-impact tested’ would offer appreciably increased safety in side-impact collisions.” And plaintiffs alleged that they didn’t. Even accepting that “side-impact tested” was literally true, it could still mislead a reasonable consumer. [Cue XKCD reference.]

There’s a lot of discussion of various state consumer protection acts. As to state safe harbor provisions, Graco argued that its seats complied with federal safety standards set by the National Highway Traffic Safety Administration, but its alleged conduct (stating that the seats were safe for kids under forty pounds) was neither “required” or “specifically permitted” by NHTSA. Manufacturers are required to use a label stating a recommendation for maximum and minimum child sizes, with a lower bound prohibiting booster seats for kids under 13.6 kg, but it is left to manufacturers “to determine what that specific safety recommendation should be.” And NHTSA prohibits misleading labels or instructions, so if “side-impact tested” misleadingly suggested that the seats offered increased safety in side-impact collisions, this representation would violate federal rules rather than complying with them.

However, claims for injunctive relief under Illinois law failed because plaintiffs didn’t allege an intent to repurchase the seats.