"Australia's #1" is puffery for product sourced from but not sold in Australia

Painaway Australia Pty Limited ACN 151 146 977 v. MaxRelief USA, Inc., 2022 WL 1028024, No. 18-3854 (E.D. Pa. Apr. 6, 2022) [not so sure the ACN should be part of the caption, but there it is in Westlaw]

Painaway sells a range of arthritis and pain relief spray, cream, and roll-on products; it is registered with the Australian Therapeutic Goods Administration (TG”), Australia’s regulatory agency for medical drugs and devices and sells to consumers inside and outside of Australia, via its website.

MaxRelief sells pain relief spray and cream through its website and through online distributors such as Amazon.com and retail pharmacies. MaxRelief used to surce pain relief spray products in Australia from a non-party, but stopped in 2014.

Painaway advertised its products as “Australia’s No. 1 Joint & Muscle Spray and Cream Topical Pain Relief Brand” on: (1) its Australian website; (2) social media; and (3) Ultimate Fighting Championship (“UFC”) athletes’ clothing in matches televised in the United States. Around 2013, MaxRelief also made “Australia’s # 1” claims through its website, Twitter, and YouTube accounts. It also used radio and television outlets in select US markets. Its witness testified that, “at the time [MaxRelief] was made in Australia, it was manufactured – it was invented in Australia, and we believed it to be the best product – the best pain relief product of Australia. [ ] – we didn’t say we were the #1 selling, we didn’t say – and to be honest with you, we didn’t give much thought to it, other than we’re probably Australia’s best product – Australia’s best pain relieving product, and that’s what we say.”

MaxRelief stopped using the “Australia’s # 1” advertising slogan in 2018; Painaway advised Defendant’s customers that MaxRelief used “Australia’s #1” slogan in violation of an injunction order issued, via default, in E.D. Pa., but MaxRelief wasn’t a party—Painaway sued and obtained the injunction against its Australian supplier.

Painaway then sued, alleging that MaxRelief’s use of the “Australia’s #1”  was explicitly false and misleading, as MaxRelief’s products are not sold in Australia.

The court granted summary judgment to MaxRelief.

First, “Australia’s #1” was puffery, despite the geographical reference and the lack of sales in Australia. The court, wrongly, began by focusing on intent: MaxRelief chose the slogan for “subjective reasons.” There was nothing quantifiable in the claim, like best selling or best ingredients. “[B]ecause it is unquantifiable, ambiguous, and vague, it cannot be determined to be literally false, and instead, is puffery.” Nor did the slogan specify a “specific person or identifiable group” that favored the product.  “Defendant sourced the materials and products from Australia; thus, without adding specifics as Defendant did here, MaxRelief is allowed to safely make this broad and vague claim that it was ‘Australia’s #1’ within the confines of puffery.”

Plaintiff also failed to show consumer deception or materiality. Nor did it show sales diversion, since the evidence was that plaintiff’s sales in the US were “insignificant” before MaxRelief entered the market.