Wednesday, March 26, 2008

Listerine Purchasers Did Not Show Similar Injury from “Effective as Floss” Ads

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Certification of a class of all Massachusetts consumers who purchased Listerine mouthwash during an allegedly unfair and deceptive “effective as floss” advertising campaign was vacated because the purchasers failed to assert a similar injury to all class members, a Massachusetts appellate court has ruled.

The purchasers alleged that Listerine's manufacturer, Pfizer, violated the Massachusetts Consumer Protection Act. The advertising campaign included four different television advertisements, print advertising, and labels and tags attached to some bottles of Listerine.

The two would-be class representatives both had used Listerine for at least ten years before the advertising campaign. They testified to seeing television commercials, but not print advertisements, bottle labels, or neck tags. Neither could remember the specific television commercials they saw. Essentially all they remembered from the commercials was that Listerine was described as being as effective as floss. Neither testified that the commercials expressly stated that they should stop flossing, according to the court.

Class Action Injury Requirement

The case faltered on the Act's class action requirement that the use of an unfair or deceptive act or practice must have caused similar injury to numerous other persons similarly situated, the court determined. The proposed class included some consumers with exposure and some without exposure to a variety of different advertisements, some deceptive, for at least a category of consumers, others adequately informative for any reasonable consumer.

The proposed class would include those who purchased the product for reasons related to the deceptive aspects of the advertising and those who purchased it for reasons totally unrelated. In these circumstances, the court found it difficult to conclude that the proposed class consisted of consumers similarly situated and similarly injured by a common deceptive act or practice.

There were too many different reasons why consumers purchased the products, too many different types of advertisements, too much variation in exposure to the advertisements, too fine a line between permissible puffery and actionable deception in the different advertisements, and too little information on the market impact of the deceptive aspects of the advertising campaign to support a conclusion that the consumers in the class certified were similarly situated and similarly injured by a common deceptive act or practice, in the court’s view.

The case was remanded for further proceedings.

The February 29 decision in Kwaak v. Pfizer is reported at CCH Advertising Law Guide ¶62,896

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