repeating a tested claim about later product editions isn’t literally false without relevant differences between editions

Strategic Partners, Inc. v. Vestagen Protective
Technologies, Inc., No. 16-CV-05900, 2017 WL 5951881 (C.D. Cal. Nov. 13, 2017)
Vestagen makes Vestex scrubs, a product made with a fabric
containing a fluid barrier and antimicrobial agent that inhibits the growth of
bacteria on the fabric. SPI sued for false advertising, and a jury returned a
verdict in favor of Vestagen, finding that SPI failed to prove its false
advertising case. (Previous
discussion of SPI’s claims
.) The court denied SPI’s motion for judgment as
a matter of law/for a new trial. 
Post-verdict JMOL is proper if the evidence presented at trial “permits
only one reasonable conclusion, and that conclusion is contrary to” the jury’s
verdict.  Here, there was evidence that
could have favored Vestagen on each claim. 
Among other things, SPI argued that Vestagen changed the
composition of the fabric used in Vestex scrubs in 2015, but continued to cite
to a 2012 study as showing that Vestex scrubs reduce the amount of harmful
bacteria on the fabric. SPI argues that “advertising is ‘literally false’ if it
makes claims regarding the findings of a study wherein the study did not test
the same product as advertised.” However, to take advantage of this rule, SPI
would have to show that there were relevant design differences between the
tested product and “later editions” of the same product.  “Both editions of the scrubs incorporated the
Vestex antimicrobial technology. SPI cited no evidence showing that the change
in fabric negatively affected its antimicrobial properties,” and indeed there
was evidence to the contrary.
SPI also argued that Vestagen falsely advertised that
“Vestex fabric is currently registered with the FDA,” even though the FDA does
not permit registration of a fabric and the fabric itself is not in fact
registered. But Vestagen introduced evidence that the surgical scrub that is
made out of that fabric is registered with the FDA, and that it made the claim
only in the context of the scrub. This was enough to allow the jury to reject a
literal falsity argument.  Likewise, the
situation didn’t justify a new trial.

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