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The importance of consumer surveys in deceptive advertising matters

Litigants in false advertising matters can often underestimate the impact of consumer surveys in proving or refuting allegations of deception. One example is Trex Co. v CPG International, two companies who compete in the alternative decking industry. In this case, Trex alleged that CPG engaged in advertising that included false or misleading statements, including the claim that “CPG is a preferred choice 2-to-1 over the competition.” Trex sought a preliminary injunction against CPG based on the alleged false claim.

CPG maintained that the “preferred choice 2-to-1” claim was puffery. The court disagreed, pointing out that the claim provided a ratio, which implies that there is data to back up the statement. Further, the court believed that the phrase "preferred choice," especially when combined with the 2-to-1 ratio, made a sufficiently factual statement that could potentially be construed as false or misleading.

The court concluded that the vague nature of the claim precluded a finding of literal falsity, and therefore turned its attention to determining whether the claim was misleading (that is, was the claim deceptive through implied falsity). Trex, however, did not put forth any empirical evidence to demonstrate that a reasonable consumer would be misled by the “preferred choice 2-to-1” claim. As a result, the court concluded that Trex had failed to meet its burden and denied the motion for preliminary injunction.

What is interesting about this case is that Trex seemed unprepared for the court to consider the claim as anything other than literally false. While determining literal falsity does not require the aid of consumer perceptions, demonstrating that an advertisement is misleading relies almost exclusively on what consumers believe after being exposed to the advertisement at issue. Not surprisingly, consumer surveys are one of the most frequently utilized and accepted methods in which to demonstrate whether or not an advertisement is misleading to consumers. In this case, it appears that the court was expecting a consumer survey, and the failure to produce one undermined Trex’s ability to obtain the preliminary injunction.

To learn more about the impact of consumer surveys for deceptive advertising, please contact us.

Deceptive Advertising

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