showing falsity of a noncomparative “tests prove” claim

Strategic Partners Inc. v. Vestagen Protective Techs., Inc.,
2017 WL 5897711, No. 16-CV-05900 (C.D. Cal. Jul. 31, 2017)
Vestagen sells specialty textiles for healthcare
applications, while SPI sells medical apparel; their medical garments with
antimicrobial fabrics compete.  Vestagen
alleged the falsity of SPI’s statement in its website FAQ that the
antimicrobial technologies it uses on its Certainty and Certainty Plus “start[
] to work upon contact with unwanted bacteria,” rendering bacteria “ineffective
immediately.”  Vestagen argued that this statement
literally false because SPI only had test data taken twenty-four hours after
the fabrics were inoculated with bacteria. SPI offered four declarations
asserting that the statement was true, creating a material issue of fact. 
Vestagen argued that the lack of test data directly
supporting the statement showed literal falsity.  While literal falsity can be shown by showing
that product testing is “not sufficiently reliable to permit one to conclude
with reasonable certainty that [it] established the claim made,” those cases
involve comparative superiority claims, but this statement wasn’t a comparative
claim, and there was no legal authority that such an ad needed proof through
test data.
The inventiveness of lawyers is legendary, but this distinction
makes no sense.  The rationale for the
rule about showing the falsity of “tests prove” statements has nothing to do
with comparative advertising.  It’s about
scientific evidence and its greater credibility with customers; when consumers
see a statement apparently based on scientific rather than anecdotal data, they
have more reason to credit it.  Thus,
“tests prove X” can be proved false either by showing “not X,” or by showing
“tests don’t prove X”; either one will falsify the claim actually made by the
defendant.
Regardless, the court ruled in addition that, based on the
definition of “ineffective” and justifiable inferences in SPI’s favor, “rendering
a bacteria cell ineffective immediately is not necessarily inconsistent with an
inability to stop germs instantaneously.” The fabric could immediately render
the cell incapable of replicating efficiently, or of not remaining viable as
expected, even without killing it immediately. 
Vestagen couldn’t prevail on this evidence at this stage.

from Blogger http://ift.tt/2jMOyrp

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