Carefully craft and substantiate your marketing claims and product content to avoid costly litigation
BY DANIEL J. GERBER AND SAMANTHA DUKE
Mattress manufacturers and retailers must guard against aggressive lawsuits based on their advertising, marketing and manufacturing activities. Class-action litigation lawyers have increased attacks on all sorts of product makers and sellers—sleep products manufacturers and retailers are no exception. Advanced planning, as well as vetting your advertising, marketing and content claims with qualified, experienced experts both inside and outside your company, can help you avoid or minimize expensive, time-consuming litigation.
What constitutes a king, queen, twin or other dimensionally advertised or marketed mattress size? Marketers should double check any dimensional claims made by the company.
Opportunistic lawyers have taken to measuring all sorts of items to start class-action claims on the grounds that hundreds, thousands, even millions of consumers haven’t gotten what they were promised by product sellers. These claims include approximate dimensions in condominium plans in which a condominium advertised as “1,800 square feet” was more precisely measured by the consumer as 1,790 square feet. While some may bristle at the idea that 10 square feet is the subject of a class action, the value of the claim is multiplied if the condominium complex contains 300 units and the per-square-foot valuation of a condominium is based on $150 per square foot. Suddenly, that advertisement of 1,800 square feet results in a damage claim of $450,000, plus attorney’s fees, for the suing party.
Similar lawsuits have been brought for all sorts of dimensional promises. These include claims that a “foot-long” sub was not actually 12 inches and that a “45-quart” cooler was only 37.6 quarts. In the sleep products context, thread-count class actions—claiming that a “600-thread-count” product contained fewer than that—are abundant.
As a mattress manufacturer, are your quality-control standards sufficient if your claims are ever challenged? Think about the evidence you could provide to defend a claim that your mattresses or other products fall below your dimensional claims.
In advertising, all dimensional claims should be as precise as possible, with a disclaimer such as “all dimensions are approximate,” “each mattress is individually made and dimensions can vary from mattress to mattress” or a similar explanation. No rational court will uphold a lawsuit in which the plaintiff makes unreasonable or meaningless allegations that such a product’s dimensional claims were false.
‘Red flag’ marketing claims
Some advertising and marketing claims simply encourage scrutiny, investigation and legal action. Even if your consumers are fully satisfied, plaintiffs’ attorneys will try to exploit minor flaws in your advertising to initiate claims that are expensive to defend.
For example, in 2013 the U.S. Federal Trade Commission pursued three mattress manufacturers regarding claims that their mattresses were “chemical free” or were made from “100% natural materials.” The three producers ultimately settled with the FTC and agreed not to make similar claims in the future.
The FTC, state attorneys general and plaintiffs’ class-action lawyers often review and test advertising claims that overpromise results or use certain “red flag” words. For example, the FTC recently has taken interest in “organic” and “all-natural” claims. Similarly, claims that a product may cure diseases, alter the body or offer quantifiable improvements due to better sleep will invite harsh inquiry.
One good practice is to limit your advertising claims to those you can substantiate; however, substantiation means different things for different statements. In general, it means there was evidence to support the claims before they were made. A statement promising consumers that using a mattress will cure a disease better have an ample scientific basis establishing that fact (along with a long list of necessary regulatory approvals). But a statement that a material is “softer” than an earlier iteration of the same product may not need much substantiation because it expresses a more subjective view.
Advertisements should be scrutinized carefully to confirm that every factual or near-factual statement is substantiated. Attorneys well-versed in consumer and class-action law can guide the process toward fully substantiated advertising claims. There are some claims that don’t require substantiation, such as “the best mattress” because no reasonable person would take this subjective claim literally. Whereas more factual claims, such as “made from recycled material” or “made of latex,” are objective facts that should be substantiated. Establishing a substantiation file or a rationale for a claim that might be considered puffery is good insurance against future regulatory or consumer litigation claims of unfair or deceptive trade practices.
What’s in it?
Chemical content and indoor pollution claims against manufacturers of consumer products have increased over the years. Attorneys looking for lawsuits to file against companies are scanning advertising, marketing, packaging and labeling to look for statements that could form the basis of a lawsuit. Plaintiffs’ attorneys also are testing products to determine the chemicals from which they are made and whether they “off-gas” potentially harmful products.
Many claims may be familiar. For example, in the food context, advertisements that an item is “sugar free” or “organic” must adhere to strict rules about those disclosures. Likewise, Lumber Liquidators has become embroiled in costly litigation because of allegations that its pressed-wood flooring products and laminated products may off-gas formaldehyde in some homes.
Manufacturers and retailers should evaluate any claims they make about the chemical ingredients in their products to confirm they are substantiated. They also should make sure their products conform not only to applicable federal regulatory standards, but also to the requirements of each state in which their products are sold. For example, California’s Environmental Protection Agency has strict emission standards for composite wood products, and the state’s Proposition 65 requires businesses to notify Californians about certain chemicals in the products they purchase.
Mattress manufacturers also should maintain high quality-control procedures in their purchase and use of materials. There are many organizations that can certify the quality, source and other attributes of components used in many consumer products, including mattresses.
Be warned, however, that certification by an organization that isn’t an independent third party but actually is an organization you control may be considered deceptive.
All businesses are under increased pressure from class actions and other lawsuits. Mattress manufacturers and retailers are no exception. Companies in the sleep products industry should do their homework to minimize the risk of being targeted by such litigation and be better prepared in advance to defend against unfounded lawsuits.