It's not particularly surprising that the Court of Appeal (and trial court) come out the way they do in this case. Plaintiff buys s bottle of tangerine juice that prominently displays on its label: "No Sugar Added." Which is true. As well as not surprising, since no one adds sugar to their tangerine juice.
Plaintiff files a putative class action suit that says that the label is deceptive, since it implies that other juices (i.e., the competition) adds sugar. The trial court dismisses the suit, and the Court of Appeal affirms. The label is literally true. And creating liability for true statements that might imply a claim about competing products would, according to Justice Hoffstadt, be too broad. As he puts it:
"Assume that a new airline runs an ad with a tagline, 'No
Hijackers Allowed.' Is a reasonable consumer likely to infer that
other airlines do allow hijackers and that the new airline is
consequently the safer choice? We think the answer to this
question is 'no.'"
Hence no liability or cause of action.
You can see why it comes out this way.
Though it brought a smile to my face, because I couldn't help thinking in response of one particular (great) episode of Mad Men. Don Draper meets with a bunch of Lucky Strike (tobacco) executives who are upset that they can no longer advertise the (untrue) health claims regarding their cigarettes. And, at the same time, the public -- this is the 60's -- is starting to become fully aware of the serious adverse health consequences of smoking.
So how are the executives supposed to advertise their products and disabuse the public of the sense that smoking is bad for you?
Near the end of a very stress-filled meeting, Don has a revelation, and comes up with the following (awesome) idea:
"Don: This is the greatest advertising opportunity since the invention of cereal. We have six identical companies making six identical products. We can say anything we want.
[Looking at the executives] How do you make your cigarettes?
[Junior Executive]: I don't know.
[Senior Executive]: Shame on you. We breed insect-repellent tobacco seeds, plant 'em in the North Carolina sunshine, grow it, cut it, cure it, toast it . . . .
Don [interrupting]: There you go. There you go.
[Don writes on blackboard: "Lucky Strike. It's Toasted."]
[Junior Executive]: But everybody else's tobacco is toasted.
Don: No. Everybody else's tobacco is poisonous. Lucky Strike's is toasted."
Beautiful.
The original (extended) scene is here. Masterfully done.
It took over half a century. But we now have a formal published opinion:
It's not deceptive to say that your cancer- and heart attack-causing product is "toasted" when it is.
