As all hunters know durn well, wild game can get spooked if they catch a whiff of "people-smell."
So, in 1992, a company called A.L.S. Enterprises came out with "ScentLok" technology: activated carbon that you could put in jackets and parkas, so that human scent particles would stick to it rather than float out and frighten the game.
But in September 2007, a pack of hunters up in Minnesota filed a federal lawsuit against A.L.S. Enterprises and Cabelas (which was selling products with "ScentLok").
The hunters complained that the advertising was misleading. Some ads used eye-catching phrases such as "complete scent elimination," and "works on 100% of your scent (100% of the time)."
In the trial, experts from both sides agreed that ScentLok does not, technically, block 100 percent of human odors. (Though, according to defendants, it did a pretty good job at 96 to 99 percent).
The trial judge found those phrases "literally false" and banned them from ads.
Last week, the Eighth Circuit Court of Appeals reversed the ban, writing:
We doubt there are many hunters so scientifically unsophisticated as to believe thatThe panel judges referred to those "100 percent" claims as boastful "puffery," which isn't actionable.
any product can 'eliminate' every molecule of human odor.
But Judge Michael Melloy added his own opinion that departs from the majority in some interesting ways:
It is true that only a very credulous consumer would believe such a claim, but the claim itself is, in fact, false. 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.The case has been remanded back to the district court in Minnesota.