United Industries Corporation sells Cutter Natural Insect Repellent. The company promotes the product, which is DEET-free, as an insect repellent that, "repels mosquitoes for hours."
What does "repels mosquitoes for hours mean"? Does it mean that it protects all types of people, from all types of mosquitoes, in all environments, for hours? Or does it just mean that it provides some level of protection for hours?
In Parker v. United Industries Corporation, the plaintiff sued under New York law, alleging that United Industries falsely promoted its product as being able to repel mosquitoes for hours. In order to prevail on a false advertising or deceptive acts or practices claim in New York, the plaintiff must show that the advertiser's claim was "materially misleading," using the "reasonable consumer standard. That means that you have to determine whether the practice was, "likely to mislead a reasonable consumer acting reasonably under the circumstances."
United Industries argued that the claim was truthful -- and was substantiated by (among other things) studies conducted by an independent lab. The lab conducted "arm-in-cage" testing, which is where a person sticks a treated and an untreated arm in a cage filled with mosquitoes, and then the lab tests how long it takes for a mosquito to land on or bite the person. (Ouch!) Those tests showed that the Cutter Natural Insect Repellent provides protection for one to four hours. The plaintiff submitted his own studies, however, which apparently showed that the product was much less effective than that.
On a motion for summary judgment, the court said that it wasn't necessary to resolve the "battle of the experts" in order to decide the motion. Instead, the court looked at the claim -- "repels mosquitoes for hours" -- and made the determination that it didn't mean that, "Cutter Natural repels all mosquitoes of all types or in all environments." In light of that, the court said that United Industries has provided sufficient evidence that the product did work for at least some consumers, and that the plaintiff did not prove otherwise. The court acknowledged, however, that, "If there was evidence that the Product worked for no one, the statement on the Product's label would certainly mislead a reasonable consumer as to the efficacy of the Product."
Did the court get it right here? Does the "repels mosquitoes for hours" claim really only communicate that the product works for some consumers, in limited situations? Or does it communicate that (at a minimum) these are the results that consumers can typically expect to achieve? (And, remember, United Industries' position was that the product did provide that level of protection.) Regardless of how you come out on the court's decision here, if you are making product performance claims where there are significant limitations on how the product performs, it's generally going to be a better bet to clearly and conspicuously disclose what those limitations are.
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