A divided Eighth Circuit Court of Appeals panel has vacated an order enjoining companies that make and sell clothing to hunters from claiming that they are made with “odor eliminating technology” and can be reactivated in a household dryer. Buetow v. A.L.S. Enters., Inc., No. 10-2415 (8th Cir., decided August 18, 2011). According to the court, the plaintiffs “failed to prove both the requisite irreparable injury and their core allegations that Defendants’ use of the terms ‘odor eliminating’ and ‘reactivation’ were literally false.”

The court found that the plaintiffs, five hunters representing a putative class, “led the lower court into error” by asserting that Minnesota consumer protection law requirements are the same as those under the Lanham Act and that the Lanham Act permits courts to order injunctive relief without considering its elements once an advertisement is deemed literally false. While courts may presume that consumers were misled by a literally false advertisement “without requiring consumer surveys or other evidence of the ad’s impact on the buying public,” the court observes that the Lanham Act still requires the plaintiff to “show that it will suffer irreparable harm absent the injunction.” The court also noted that the Lanham Act applies to cases involving competitors or plaintiffs protecting commercial interests and not to consumers, such as the plaintiffs, who were suing under state law. Thus, “[a]utomatically equating the standards of these state statutory claims to the standards that apply to Lanham Act cases between commercial parties is wrong.”

The Eighth Circuit also found that the district court erred by basing “its determination of literal falsity on the most absolute of competing dictionary definitions of the word ‘eliminate.’ … We doubt there are many hunters so scientifically unsophisticated as to believe that any product can ‘eliminate’ every molecule of human odor.” According to the appeals court, “it was error to enjoin all uses of the term ‘odor eliminating’ as literally false.”

A dissenting judge disagreed with the majority that the terms “odor eliminating” and “reactivation” were not literally false, stating “It is unwise to decide that just because the judges on the panel would not be deceived, it is therefore impossible that any reasonable consumer would be deceived. This is especially the case because the claims are scientific. I fear that the majority opinion sets up a slippery slope for future false advertising claims brought by consumers, especially as consumer products become ever more hi-tech and complex.”