Reasonable consumers needn’t expect individual products to differ from overall brand recommended by experts

Eidelman v. Sun Prods. Corp., No. 16-cv-3914, 2017 WL
4277187 (S.D.N.Y. Sept. 25, 2017)
Eidelman allegedly bought Sun Product’s “237-fl oz. bottle
of ALL PLUS + FREE CLEAR … liquid detergent” based on its label that it was “from
the #1 Detergent Brand Recommended by Dermatologists for Sensitive Skin.”  But he discovered that this particular
product wasn’t recommended, and sued under New York law.  He alleged that the words “from the” were presented
in an “excessively small” font size, as compared to the remainder of the text,
and the words “recommended by dermatologists” were in bold, misleading consumers to
believe that the product itself was the “#1” detergent recommended by
dermatologists for sensitive skin, when it wasn’t.  Eidelman also alleged that a reasonable
consumer would presume that if the product was “from the #1” recommended brand
for sensitive skin, this should include the detergent contained in the labeled

from the website

on the product

Sun allegedly makes a standard bottle for an alternate
detergent which has a label that states that it is “#1 recommended by
Dermatologist, Allergists [and] Pediatricians for Sensitive Skin,” without the “from
the” qualifier. Given the similarities between the bottles, at the time of
product choice and purchase, consumers would allegedly be misled into believing
that both detergents are the most highly recommended by dermatologists for
those with sensitive skin types. Eidelman also alleged that the product he
bought contained a “number of known skin irritants,” but that the ingredients
for the Detergent are not listed on the bottle, nor easily accessible online.

Another product, slightly different label
The court found that Eidelman stated a claim under NY GBL §§
349 and 350.  Defendants argued that the
claim was limited to the “brand,” and that a “reasonable consumer acting
reasonably under the circumstances understands what it means for doctors to
recommend a ‘brand’ as opposed to a particular product.” Even assuming the
entire text of the label was fully visible and easily read, the court refused
to conclude as a matter of law that no reasonable consumer could be misled—the claims
weren’t “patently implausible” or unrealistic.
Eidelman also alleged negligent misrepresentation, which
requires “(1) the defendant had a duty, as a result of a special relationship,
to give correct information; (2) the defendant made a false representation that
he or she should have known was incorrect; (3) the information supplied in the
representation was known by the defendant to be desired by the plaintiff for a
serious purpose; (4) the plaintiff intended to rely and act upon it; and (5)
the plaintiff reasonably relied on it to his or her detriment.” Defendants
challenged whether a special relationship existed.  “[L]iability in the commercial context is
‘imposed only on those persons who possess unique or specialized expertise, or
who are in a special position of confidence and trust with the injured party
such that reliance on the negligent misrepresentation is justified.’ ” Eidelman
argued that Sun’s claim on its website to have “clinical proof” of the products’
benefit and mild effects on skin satisfied his burden. And the label claims
that it’s from the “#1” brand recommended by dermatologists for sensitive skin.  These claims weren’t as extensive, in volume
and substance, as they were in other cases where a seller’s claims to special
expertise were enough to create a special relationship.  Eidelman didn’t overcome the presumption that
advertisements are generally insufficient to establish such a relationship.
An unjust enrichment claim did survive, even though defendants
argued that Costco couldn’t be held liable because there was no allegation that
it actually participated in misleading activities.  Costco as retailer allegedly received a price
premium from selling the falsely labeled product, which was enough at this

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