A Gummy Lawsuit
posted by Dave Hoffman
A man has bad teeth. He chews Trident Xtra Care gum, which promises that it “Strengthens and Rebuilds Teeth” by “fill[ing] in the tiny crevices where cavities can form and leav[ing] teeth more resistant to plaque acids.” His teeth remain rotten. It’s America. So he sues for deceptive business practices, and seeks to represent a class of gum purchasers. You name the defenses.
July 28, 2010 at 9:46 am
Posted in: Advertising, Consumer Protection Law, Contract Law & Beyond
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Responses (5)
Lawrence Cunningham - July 28, 2010 at 8:46 pm
1. Puffery. See Dave Hoffman.
Ken Rhodes - July 30, 2010 at 9:26 am
Puffery was my first thought, too, but then I remembered that thread about the pizza claims, and I thought about the difference between general exaggerated claims and specific, verifiable claims.
Pizza Hut can say “Our pizzas taste better than any other pizza you can buy. The only way you can equal Pizza Hut is to go to your grandmother’s house.” But they can’t say “Our cheese, pepperoni, and sausage contain more protein and less fat than any competitor” unless it’s true.
Likewise, I think, Trident can only make those specific, verifiable claims if they’re true.
Then, of course, there’s the other side of the question, which is what claim does the plaintiff have againse Trident. I think the best defense would be “OK, we’ll give you a refund. But forget the ‘class’ b.s., until you prove that everybody else in the class also got rotten teeth.”
lawanon - July 30, 2010 at 5:40 pm
Clearly not puffery. The company made a factual claim (gum “fills in the tiny crevices” etc), so their defense is to show that this factual claim is correct. You do it via an expert witness testimony citing relevant research, which I bet they have. The ad didn’t say that everyone’s teeth will be preserved; it said that the gum increases the chance of preserving the teeth. It’s like saying that cigarettes cause cancer — it doesn’t mean every smoker will get cancer, and it doesn’t mean smoking is the only thing that causes cancer. A patently frivolous law suit, but puffery is not an issue here.
Lawrence Cunningham - July 30, 2010 at 10:26 pm
Puffery defense withdrawn. See 2 and 3 above.
BM - August 1, 2010 at 3:50 am
I’m a bit late to the game, but yeah – puffery is a no-go.
This wasn’t some clearly outlandish claim about the gum tasting better than any other.
Trident was making specific claims about the gum’s impact on the health of your teeth — claims that can be tested objectively.
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