“Kids” in product name represents that product is safe for children to use

Mirza v. Ignite USA, LLC, 2020 WL 704791, No. 19 C 5836
(N.D. Ill. Feb. 12, 2020)
Ignite sells reusable beverage containers, coffee mugs,
water bottles, and kids’ cups under the Contigo brand name. Plaintiffs bought Contigo
Kids Cleanable Water Bottles. At some point thereafter, the bottles’ clear
silicone spout detached, posing a choking hazard to plaintiffs’ children. Ignite
issued a recall, offering to replace the lid on the water bottles but not any
monetary relief.
  
Plaintiffs alleged that they relied and understood the name
on the water bottles’ packaging, “Contigo Kids,” to represent that the bottles
were safe for children to use, and that naming the water bottles “Contigo Kids”
was false and deceptive in violation of several consumer protection laws.
The plaintiffs adequately alleged that they paid more for
the water bottles than they would otherwise pay for a dangerous and defectively
designed product, and that the recall didn’t provide minimal notice to class
members or adequately compensate for the lost use of the product while a
replacement lid was processed. The recall/free replacement didn’t obviate the
Article III injuries here. A financial injury creates standing, and plaintiffs
didn’t participate in the recall and thus didn’t get a product worth what they
paid for it.
NY breach of implied warranty claims failed for want of
privity; the exception for harmful products didn’t apply because plaintiffs
weren’t alleging that they’d been physically harmed, only that they paid too
much. NY unjust enrichment failed as duplicative of claims under New York’s GBL
§§ 349 and 350, though Pennsylvania unjust enrichment claims survived.
Ignite argued that there was no Pennsylvania UTPCPL violation
because, among other things, “Contigo Kids” wasn’t an actionable
misrepresentation, and that no reasonable consumer would read the name to imply
that the product was free from defect. The court disagreed.  Somewhat mushing causes of action together,
the court appeared to consider only whether the name could be false (not
misleading). But it doesn’t matter: plaintiffs sufficiently alleged a false
representation as to a product’s characteristic, quality, or standard, as required:
The name “Contigo Kids” signals to
consumers that the water bottles are designed for children. One would expect
products made for children, at the very least, to be free from defects that
would pose a choking hazard given the frequency of choking incidents for this
age group. Absent a warning to the contrary, the presence of the term “Kids” on
the label misleads consumers into believing that the product is safe for
children. And contrary to Ignite’s argument, “[a] ‘literally false’ message may
be either explicit or ‘conveyed by necessary implication when, considering the
advertisement in its entirety, the audience would recognize the claim as
readily as if it had been explicitly stated.’ ”
… The name signals that the water
bottles were made for children, and a necessary implication of products made
for children is that they are safe for their use. Accordingly, a reasonable
consumer looking for water bottles for her children could be reasonably misled
by the product’s name.
[Note: consumer protection law hasn’t historically made, and
really shouldn’t make, the Lanham Act’s false/misleading distinction, making reference
to falsity by necessary implication unnecessary here. The plaintiffs sufficiently
pled falsity or misleadingness.]
The same analysis also applied to NY GBL §349 and §350
claims, though fraudulent omission claims failed for failure to allege
knowledge of the defect at the time of sale.

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