Consumers claim critter repellants fail to drive off vermin as advertised
“This case is simple and the disputed issues of material fact are stark.”
Music to a plaintiff’s ears.
In this case, the plaintiffs are Joanne Hart and Sandra Bueno, California consumers who brought a lawsuit against Bell + Howell and Van Hauser LLC (BHH), manufacturers of plug-in ultrasonic pest repellers. The plaintiffs accused BHH of violations of California’s Consumer Legal Remedies Act (CLRA), Unfair Competition Law, False Advertising Law, and breach of express warranty and fraud for advertising their vermin repellers as effective, when, the plaintiffs claim, they spectacularly fail to do the job.
The Mouse That Snored
In their motion for summary judgment, the defendants had claimed that despite the repellers’ packaging, which promised to “rid your home of all kinds of creepy crawlies” and other such assertions, disclaimers had made clear that the product would not work in every circumstance, including in rooms with a lot of carpets and furniture that would dull the effect of the ultrasonic waves. This was enough, they argued, to explain why the repellers failed in certain circumstances, and to hold otherwise would imply an undefined “real world effectiveness standard;” the reasonable consumer, according to BHH, would understand the limitations of ultrasonic technology and that its effectiveness would be impacted by hard objects or carpeting.
And here’s the second wonderful line from the Southern District of New York’s order to deny BHH’s motion for summary judgment: “As the [plaintiffs’] photographs show, mice can apparently relax comfortably under a Repeller and even appear to be so drawn in by its siren song that one would scale a wall just to snooze on it.”
Oh, those photographs. They show mice congregating under a repeller and even lounging across the top of one in a state of somnolence. The effect was to leave “the Court wondering how BHH can argue that there is no disputed issue of material fact as to efficacy.”
The court argued that the repellers were being accused not of failing in certain circumstances, or of falling short of a nonexistent standard, but of never working at all, thus leaving the subject matter of the case open to decision by jury. Similarly, the plaintiffs called into question the credibility of BHH’s premarket testing on its repellers, and the court found that a trier of fact could find that the tests were too limited. The order also references numerous Federal Trade Commission notices to manufacturers and retailers of similar products, as well as studies that demonstrated the ineffectiveness of ultrasonic repellant techniques, all of which might give rise to the notion that the defendants’ marketing was knowingly false.
This case, like the Goop and Vital cases discussed above, should reinforce the need for reliable and competent evidence to substantiate claims, particularly as it relates to claims of product attributes and performance.