“Safe” not puffery in context of electric dog collars

Hernandez v. Radio Systems Corp., No. EDCV 22-1861 JGB (KKx),
2023 WL 2629020 (C.D. Cal. Mar. 9, 2023)

Hernandez brought the usual
California claims
against RSC for  allegedly false and misleading advertising of
its electric collar products for pets under the brand name PetSafe. He
allegedly bought them because he believed that they were safe, effective,
harmless, and an appropriate tool for training household pets based on the
packaging and advertising of the products, e.g.:

SAFE CORRECTION: When your pet
enters the “off limits” area, the transmitter sends a safe static correction to
their receive collar.

SAFE CORRECTION: When your pet
enters the barrier area, they feel a safe, progressive static correction,
starting at the lowest level; includes automatic safety shutoff.

pet enters the boundary area wearing the receiver collar, they will hear a
series of beeps and then will receive a safe yet startling static correction.

He also viewed the PetSafe logo, “Safe Pets Happy Owners,”
as reassurance that the products were safe. In addition, the packaging of
PetSafe electric fence systems prominently display the following question and

Will it hurt my pet?

NO. The correction is delivered
when a pet crosses the established boundary zone. It is designed to get your
pet’s attention, but not punish him. This method has been proven safe and will
not harm your pet.

He alleged that, after using the product, he noticed that
his dog’s personality was more subdued than normal and that she had lost her
appetite. He identified a sticky residue and a foul burning smell around his
dog’s neck, and discovered that a patch of fur was missing from her neck. His
veterinarian identified holes in the dog’s neck that coincided with the
electrode inserts in the PetSafe Products.

Hernandez thus alleged that claims that the PetSafe Products
are “safe” and “harmless” are false and misleading because they (a)
misrepresent the dangers and risks of severe physical harm and injury to pets
associated with the use of the Products; (b) misrepresent the dangers and risks
of psychological damage, including anxiety, stress, and depression, to pets
associated with the use of the Products; (c) misrepresent the dangers and risks
of increased aggression and behavioral problems in pets associated with the use
of the Products; and (d) misrepresent that the Products are humane or are
recommended by industry experts. Instead, he alleged that an “overwhelming body
of scientific research confirms that being trained through electric shock is a
stressful and painful experience for dogs.” However, he would allegedly be
willing to purchase PetSafe Products if they were in fact safe, harmless, and

In this context, representations that the products were
“safe,” “comfortable,” “effective,” “harmless,” and “humane” were not puffery. While
only “misdescriptions of specific or absolute characteristics of a product are
actionable,” allegedly false claims that “explicitly or implicitly address
product attributes of importance to customers” are not puffery. “Representations
concerning the health and safety effects of products are ordinarily important
to consumers such that false advertising claims based on them should survive

While defendant argued that products weren’t “inherently
dangerous or hazardous,” a reasonable consumer may disagree. “When a seller
represents that [an electric collar] is ‘safe’,’ a reasonable consumer may
understand that to be a concrete representation that, at the very least, the
[electric collar] will not [harm the pet] when used correctly.”

Likewise, the court couldn’t conclude that there would be no
deception as a matter of law. RSC argued that no reasonable consumer would
assume that the PetSafe Products are “risk-free” because the packaging and
product manuals disclose the relevant safety risks, including skin damage. But
small print can’t cure deception of reasonable consumers, nor can disclosures
in product manuals. Further, “brand names by themselves can be misleading in
the context of the product being marketed.” “Defendant’s descriptive brand
name, PetSafe, requires ‘little thought’ of the consumer and implicitly assures
consumers that the Products are safe.”

The court also declined to reject the request for injunctive
relief.  Fernandez alleged that he’d want
to purchase them in the future, but can’t know if the ads are accurate. That
was enough. (This strikes me as out of the mainstream—it would seem to require
a reformulation of the product for him to change his mind, as opposed to
accurate labeling.)

from Blogger http://tushnet.blogspot.com/2023/03/safe-not-puffery-in-context-of-electric.html

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