“tested” can misleadingly imply high performance on test

Carder v. Graco Children’s Products, Inc., — F.Supp.3d
—-, 2021 WL 3909953, No. 2:20-CV-00137-LMM (N.D. Ga. Aug. 31, 2021)

Plaintiffs from fifteen states alleged that Graco made false
and misleading representations about two models of children’s car seats,
specifically marketing them as being (1) “side-impact tested” and (2) safe for
children as small as thirty pounds and as young as three years old. Graco
allegedly knew since 2002 that the seats didn’t appreciably reduce the risks
associated with side-impact collisions (and that there are no federal safety
standards for side-impact testing); that Graco’s own testing didn’t show that
the seats were safe in side-impact collisions; and that the seats weren’t safe
for children under forty pounds or younger than four years old.

A couple of points: The claims didn’t fail under Rule 9(b)
even though some plaintiffs didn’t plead the exact model they purchased or the
exact time, date, and price of their purchases; those details aren’t required
to satisfy Rule 9(b), which requires specificity about “the particulars of the
allegedly misleading statement itself, not .. the circumstances of the
plaintiff’s conduct in reliance on that statement.”

Could the advertising mislead a reasonable consumer? Graco
argued that its statements were true, but the court accepted that, “at the very
least, reasonable consumers could believe that Booster Seats advertised and
represented as ‘side-impact tested’ would offer appreciably increased safety in
side-impact collisions.” And plaintiffs alleged that they didn’t. Even
accepting that “side-impact tested” was literally true, it could still mislead
a reasonable consumer. [Cue XKCD reference.]

There’s a lot of discussion of various state consumer
protection acts. As to state safe harbor provisions, Graco argued that its
seats complied with federal safety standards set by the National Highway Traffic
Safety Administration, but its alleged conduct (stating that the seats were
safe for kids under forty pounds) was neither “required” or “specifically
permitted” by NHTSA. Manufacturers are required to use a label stating a
recommendation for maximum and minimum child sizes, with a lower bound
prohibiting booster seats for kids under 13.6 kg, but it is left to
manufacturers “to determine what that specific safety recommendation should be.”
And NHTSA prohibits misleading labels or instructions, so if “side-impact
tested” misleadingly suggested that the seats offered increased safety in
side-impact collisions, this representation would violate federal rules rather
than complying with them.

However, claims for injunctive relief under Illinois law
failed because plaintiffs didn’t allege an intent to repurchase the seats.

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