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Judge Agrees: Customer Dissatisfaction Does Not Equal False Advertising

4 Oct, 2011 By: Gregory J. Sater

In a well-reasoned decision that should please advertisers everywhere, a federal district court judge in California has thrown out a class action case filed against Epson in which the plaintiffs had alleged that Epson should pay them millions of dollars in damages because its inkjet printers "guzzle" ink, something that they said Epson "should have disclosed" in its ads, but didn’t.

Framing their case against Epson as one of omission, rather than commission, the plaintiffs claimed that Epson's ads should have disclosed "the grossly inefficient print yields generated by Epson's ink cartridges, which are well below reasonable consumer expectations and below the yields of other manufacturers' printers."

The problem for the plaintiffs was that false advertising law does not impose an obligation on an advertiser to only advertise a product that meets "reasonable consumer expectations" or to only advertise a product that is as efficient or as good as other available products. False advertising law is about false advertising, something the judge found Epson had not committed.

The plaintiff's theory, the judge noted, would require Epson to discuss efficiency as an issue in its ads, when it didn’t want to discuss that, and there is no legal obligation upon it to do so. The judge said such a requirement would mean that Epson would have to compare and contrast, in its ads, the relative efficiency of its printers with those of its competitors. The judge observed, "Efficiency is an inherently relative construct; a product is either more efficient or less efficient than something,” and ruled that, in the absence of an affirmative misrepresentation by Epson in its ads regarding its printers' efficiency levels, Epson had no duty to come out and disclose anything about its printers’ efficiency or lack thereof.

Under California's false advertising laws and those of many other states, in order for an "omission" to be actionable it must either be contrary to an affirmative representation that was actually made by the advertiser or it must be a fact that the advertiser is obligated to disclose. The judge concluded: "California’s consumer protection laws, though broad, do not extend so far as to require a company to denigrate its own products or promote those of its competitors just because consumers might be interested in the comparison.”

There are many products that could be subject to a "should have disclosed” challenge. The advertising for a successful fitness workout sold on television might "fail to disclose" that it doesn't burn as many calories per hour a competing fitness workout. The advertising for a shampoo or hair care product might "fail to disclose" that it comes in a bottle that is relatively small. The point is, assuming it isn't a safety issue that's being concealed, it's not up to the advertiser to tell the public about the negatives of its own product.

This case stands for the logical principle that customer dissatisfaction does not automatically mean that there was false advertising. Unless the advertising made deceptive claims, the proper remedy for customer dissatisfaction is to return the product or, barring that, to exercise one's First Amendment right to criticize its defects to others so that they won't make the same mistake you did buy purchasing it.

As of Sept. 30, Gregory J. Sater is now a partner in the Los Angeles office of Venable LLP. He can be reached at

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