“tested and certified” can be false if in fact products were merely “certified” by non-tester

Wedi Corp. v. Wright, 2021 WL 1054463, No. 20-35242 (9th
Cir. Mar. 3, 2021)

Wedi alleged that three statements were literally false in
violation of the Lanham Act and the Washington Consumer Protection Act:

All Hydro-Blok Products Are IAPMO Tested and Certified.
(IAPMO is a relevant certifier).

Hydro-Blok Products Are ICC-ES Tested and Certified. (ditto).

What is HYDRO-BLOK? Put simply it is the easiest, quickest
and most user-friendly way to build a water-proof shower or tub surround at a
price you can afford.

The last (easiest, quickest, most user-friendly, affordable)
was non-actionable puffery.

As to the first, Wedi didn’t provide enough evidence to show
that the products weren’t IAPMO tested.

However, the district court erred in granting summary judgment
on the ICC-ES statement. Wedi presented evidence that ICC-ES did not request
product samples from Hydro-Blok to test, but rather relied upon IAPMO’s tests. “A
legitimate claim could be made that no testing of Hydro-Blok products was
conducted by ICC-ES.” This is interesting because some courts won’t inquire
further into a certifier’s practices—query whether there is a material
difference between “ICC-ES Certified” and “ICC-ES Tested and Certified.”

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