claims to “take a beating,” “withstand,” and “increase durability” were puffery

Lowe v. ShieldMark, Inc., No. 1:19CV00748, 2023 WL 2540296
(N.D. Ohio Mar. 16, 2023)

Lowe sued ShieldMark for (as relevant here) false
advertising of its line floor tape. The court granted summary judgment because
the accused statements were not falsifiable:

1. Mighty Line Floor Tape’s
“[b]eveled edge tape can take a beating from industrial wheel traffic”;

2. “Mighty Line Floor Tape
withstands industrial brush scrubbers, forklifts, and heavy industrial wheel

3. Mighty Line Floor Tape’s
“[b]eveled edges increase durability for forklift traffic.”

Lowe argued literal falsity because ShieldMark admitted in
litigation that its tape was susceptible to being “unintentionally lifted [off
the floor] when a 2-by-4 block of wood is swept across the tape,” and that
“[i]f a 2-by-4 lifts up the tape, then a cleaning device, forklift or skid
would also do so.” But the ad statements were “too vague to be actionably
false.” The court didn’t think there was any way to determine when floor tape
was capable of “taking a beating” or “withstand[ing]” industrial machinery.
“[N]o reasonable consumer would expect the tape to last forever, perfectly
unaltered, in the face of any or every condition. Defendant’s statements make
no measurable promises other than that Mighty Line Floor Tape probably falls
somewhere between tape that disintegrates at the lightest touch and tape strong
enough to survive a nuclear bomb.” The statements didn’t directly describe a
tape’s ability to resist unintentional lifting; they could mean resisting
abrasion, discoloration, or deformation when forklifts and other machines pass
over it. Even if the statements were factual, they were at most ambiguous, and
there was no evidence of actual deception.

from Blogger

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