Friday, March 11, 2011

Consumer’s Purchasing Habits Held Irrelevant in “Green” Marketing Case

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

A protective order against use of information about a consumer's purchasing habits has been issued by the federal district court in San Jose.

Household products manufacturer S.C. Johnson subpoenaed the information in a suit alleging that the company's labeling of its Windex glass cleaner and Shout stain remover misled consumers about the environmental safety of the products in violation of the California Unfair Competition Law and False Advertising Law.

In an earlier ruling, the court declined to dismiss the consumer's class action complaint alleging that S.C. Johnson's “Greenlist” label was deceptively designed to look like a third-party seal of approval (CCH Advertising Law Guide ¶63,741).

S.C. Johnson subpoenaed documents from the consumer's former employer, as well as retailers and credit card companies, in an effort to collect information to show that the consumer's attorney introduced him to the world of “green” products and that the consumer did not care about these products before filing this action, according to the court.

A party in federal court may seek a protective order if it believes its own interest is jeopardized by discovery sought from a third person.

The relevant issue in this consumer protection class action was whether the Greenlist label was deceptive and misleading, the court observed. Contrary to S.C. Johnson’s contention, the suit was not about the consumer's general purchasing habits.

The February 18 opinion in Koh v. S.C. Johnson & Son, Inc., CCH Advertising Law Guide ¶64,203.

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