Monday, April 27, 2009

Misrepresenting Product as “Safest” Could Be Deceptive Act

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law, and John W. Arden.

An injured user of sumo wrestling equipment could pursue a claim that the manufacturer violated the Colorado Consumer Protection Act (CPA) by knowingly misrepresenting its product as “safest,” the federal district court in Denver has ruled.

Although the manufacturer’s representation of its product as the “best built” was puffery, the manufacturer’s representation of the product as the “safest” was a measurable statement of fact, the court determined.

While attending a corporate conference, the plaintiff participated in a mock sumo wrestling contest in which the two contestants put on the sumo equipment and tried to push each other out of a circle or onto the floor. The plaintiff fell backwards during the contest and sustained serious brain injuries when her head hit the floor. The manufacturer had represented that the sumo equipment was the "best built, and safest," which the plaintiff argued was deceptive and false advertising.

“Best Built"

The advertising claim that the sumo equipment was the "best built" constituted mere puffery and was not actionable under the CPA, according to the court. The manufacturer argued that the "best built" statement was an exaggerated opinion that could not be calibrated or measured.

General statements of opinion that are not meant to be relied on by the consumer are typically considered mere puffery and not actionable under the CPA. In this case, the statement that the equipment was the best built could not be measured objectively and was merely the opinion of the manufacturer. Therefore, the manufacturer was awarded summary judgment for this portion of the claim.


Unlike the "best built" claim, the manufacturer's representation that the sumo equipment was the "safest" could reasonably be seen as a statement of fact and, therefore, was actionable under the CPA, according to the court. "Safest" could conceivably be objectively measured. It would be reasonable to assume that the manufacturer's representation that its suit was the "safest" was a statement of quality made with the purpose of having it accepted as fact.

Although the manufacturer argued that it did not know about the safety of the equipment because there had been few injuries caused by the sumo equipment, the court found that a reasonable jury could find that the manufacturer knew that its equipment was no more safe than any other sumo equipment on the market, and therefore was not the "safest."

In depositions, the manufacturer’s owner and general manager testified that its sumo suits were essentially identical to those of competitors, and a purchaser testified that the manufacturer’s helmets were more easily damaged than another manufacturer’s equipment.

Summary judgment was inappropriate because a jury could find that the manufacturer should have known that its product was more easily damaged, less durable, and therefore less safe than other products on the market, the court concluded.

The decision, Giles v. Inflatable Store, Inc., appears at CCH State Unfair Trade Practices ¶31,801 and will appear at CCH Advertising Law Guide ¶63,370.

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