Monday, March 20, 2023

claims to "take a beating," "withstand," and "increase durability" were puffery

Lowe v. ShieldMark, Inc., No. 1:19CV00748, 2023 WL 2540296 (N.D. Ohio Mar. 16, 2023)

Lowe sued ShieldMark for (as relevant here) false advertising of its line floor tape. The court granted summary judgment because the accused statements were not falsifiable:

1. Mighty Line Floor Tape’s “[b]eveled edge tape can take a beating from industrial wheel traffic”;

2. “Mighty Line Floor Tape withstands industrial brush scrubbers, forklifts, and heavy industrial wheel traffic”;

3. Mighty Line Floor Tape’s “[b]eveled edges increase durability for forklift traffic.”

Lowe argued literal falsity because ShieldMark admitted in litigation that its tape was susceptible to being “unintentionally lifted [off the floor] when a 2-by-4 block of wood is swept across the tape,” and that “[i]f a 2-by-4 lifts up the tape, then a cleaning device, forklift or skid would also do so.” But the ad statements were “too vague to be actionably false.” The court didn’t think there was any way to determine when floor tape was capable of “taking a beating” or “withstand[ing]” industrial machinery. “[N]o reasonable consumer would expect the tape to last forever, perfectly unaltered, in the face of any or every condition. Defendant’s statements make no measurable promises other than that Mighty Line Floor Tape probably falls somewhere between tape that disintegrates at the lightest touch and tape strong enough to survive a nuclear bomb.” The statements didn’t directly describe a tape’s ability to resist unintentional lifting; they could mean resisting abrasion, discoloration, or deformation when forklifts and other machines pass over it. Even if the statements were factual, they were at most ambiguous, and there was no evidence of actual deception.

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