Antitrust Law Daily Wrap Up, ADVERTISING—S.D.N.Y.: Some ‘Nursery Fresh’ diaper pail refill marketing claims literally false, (Mar 31, 2016)

By Greg Hammond, J.D.

A manufacturer of diaper pail refills for in-home disposal of soiled diapers was entitled to summary judgment on a Lanham Act false advertising claim that the refills fit certain models of the manufacturer’s diaper pail, when they did not, the federal district court in New York City has decided (Playtex Products, LLC v. Munchkin, Inc., March 29, 2016, Sullivan, R.).

Playtex Products, LLC manufactures and sells Diaper Genie, a diaper pail designed to provide in-home disposal of soiled papers. Munchkin, Inc. sold its own brand of refill cartridges designed to fit the Diaper Genie under the brand name “Nursery Fresh.” Munchkin’s packaging stated that the Nursery Fresh refills “fit” certain models of the Diaper Genie (the “fit claims”). In addition, Munchkin produced ads related to the number of layers of plastic film that the Nursery Fresh refills contain and Munchkin’s website displayed a chart comparing the thickness of the two brands and stated that Nursery Fresh refills contained “7-layer film on bags,” while Playtex refills had only a “5-layer film on bags” (the “thickness claims”). Playtex informed Munchkin in 2014 that the Nursery Fresh refills would not fit the redesigned Diaper Genie.

Playtex moved for summary judgment on the fit and thickness claims, arguing that both were literally false. In addition, Playtex asserted that the fit claims were impliedly false. Conversely, Munchkin moved for summary judgment on all claims, arguing that the fit claims and thickness claims were neither literally nor impliedly false.

Fit claims, literal falsity. Playtex claimed that the fit claims were literally false because they failed to disclose that the Nursery Fresh refills would not fit the redesigned Diaper Genies. The court determined that it was undisputed that between March 1, 2014, and March 17, 2014—the date on which Munchkin began placing a Fit Disclaimer on the Nursery Fresh refills packaging—the claims were literally false because a majority of the Nursery Fresh refills did not fit the redesigned Diaper Genies. It was also undisputed that Playtex established the other three elements of its false advertising claim—that the fit claims were material because they related to an inherent quality of the Nursery Fresh refills, that they were placed on packaging sold in interstate commerce, and that they caused injury to plaintiffs. The court therefore granted plaintiffs summary judgment with regard to Munchkin’s liability on the literal falsity of the fit claims between March 1, 2014, and March 17, 2014.

The court also found that it was undisputed that, beginning in December 2014, Munchkin began selling redesigned Nursery Fresh refills, which truthfully advertised that they fit all Diaper Genies, even the redesigned Diaper Genies. Consequently, Munchkin’s motion for summary judgment as to Playtex’s literally false fit claims after December 1, 2014, was granted.

Lastly, because the court found that the Nursery Fresh refills packaging is ambiguous and susceptible to at least two reasonable interpretations, with regard to the fit disclaimer, the court rejected Playtex’s literal falsity theory with regard to the fit claims between March 17, 2014, and December 1, 2014.

Fit claims, implied falsity. Playtex alternatively argued that Munchkin’s fit claims were impliedly false, asking the court to presume consumer deception based on Munchkin’s alleged intentional deception of the public and relying on its expert’s testimony and report as extrinsic evidence of the falsity of the fit claims. The court granted Munchkin’s motion for summary judgment, finding, in light of Munchkin’s actions and Playtex’s failure to identify any evidence suggesting intentional deception, no rational jury could conclude that Munchkin acted intentionally, much less “egregiously,” to deceive the public. In addition, the expert’s survey was irrelevant because it offered no insight into whether a statistically significant part of the commercial audience holds the false belief allegedly communicated by the challenged advertisement—that the Nursery Fresh refills would fit pails purchased after March 1, 2014.

Thickness claims. Playtex was entitled to summary judgment on the literal falsity of the thickness claim because Munchkin provided no evidence that contradicted or called into question the results of the tests demonstrating that Playtex refills were thicker than the Nursery Fresh refills. The parties’ separate motions for summary judgment, however, were denied with regard to the literal falsity of the comparison chart because there were genuine issues of material fact concerning whether and when the Playtex refills started to have more than five layers.

The case is No. 14-cv-1308 (RJS).

Attorneys: Elizabeth A. Figueira (Crowell & Moring LLP) for Playtex Products LLC and Munchkin, Inc. Thomas H. Curtin (Powley & Gibson, P.C.) and Robert C. Garrison (Lathrop & Gage LLP) for Munchkin, Inc.

Companies: Playtex Products, LLC; Eveready Battery Company, Inc.; Munchkin, Inc.

Cases: Advertising NewYorkNews