Friday, January 23, 2009

“EPA Tested and Approved” Ad Claims Enjoined

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

A manufacturer of a handheld steam cleaning appliance was preliminarily enjoined by the federal district court in New York City from making advertising claims that the product was “EPA Tested and Approved” and “completely safe.”

The EPA-tested claims were held literally false because the Environmental Protection Agency did not test consumer products. The EPA’s approval of the registration of the manufacturer’s disinfectant as an antimicrobial pesticide did not constitute testing or the application of a performance standard, the court found.

The “EPA approval” claims necessarily implied a false message about both the safety and efficacy of the disinfectant when used in the manufacturer’s product. In the face of tests showing that the disinfectant was an eye irritant, the manufacturer could not substantiate claims that the product was “absolutely,” “completely,” or “entirely” safe.

A competitor asserting Lanham Act false advertising was entitled to a presumption of irreparable harm because the manufacturer’s infomercial was a comparative advertisement, even though it did not mention the competitor or its line of steam cleaners by name.

The infomercial purported to dispel the “myth” and “industry deception” that “traditional steam cleaners” could “kill germs and sanitize.” Such references and comparative claims pointed, by clear implication, to the competitor—acknowledged by the manufacturer to be the market-leader—and its products—which resembled those shown as examples of “ordinary steam cleaners,” according to the court.

The decision in Euro-Pro Operating LLC v. Euroflex Americas will appear at CCH Advertising Law Guide ¶63,234.

No comments: