October 27, 2011
Although the little critters normally don’t present a life-threatening risk to the pet or its human owner, untreated fleas on a dog or cat can lead to a house-wide infestation, which is, as anyone who has experienced it knows, a major headache.
What if the anti-flea medication you purchased and administered to your pet wasn’t effective?
Considering the expense associated with these types of medications, you’d probably be pretty upset about it, especially if the medication were advertised to be 100% effective in killing fleas on your pet.
Kevin Simms of Santa Monica, California had such an experience, and he is upset enough to sue over it.
Hot Doc: Simms v. Merial Limited
Simms is suing Merial Limited, the manufacturer of Frontline Plus.
For those who haven’t seen the ads for it, Frontline Plus is billed as a very effective flea medication.
Simms is suing because he claims that the medication didn’t keep his dog flea-free for the 30 days that Merial claims that it should.
The case’s first issue appears here: whether Simms applied the medication correctly.
The complaint, obviously, states that he did, but producing evidence of such will be difficult.
Ultimately, though, this issue is minor.
Simms is seeking to turn the case into a class action suit (and the complaint provides numerous customer complaints arguing the problem is widespread), and under such circumstances, the court will be more interested in the medication’s actual efficacy.
Frontline’s efficacy is itself only at issue if Merial actually claimed and continues to claim that the medication is 100% effective, and Simms and other consumers were induced into purchasing the product because of those claims.
According to the complaint, the following are actual statements made by Merial on the issue:
- “unleash a complete killing force against fleas and ticks”
- “There’s killing, and there’s complete killing with Frontline Plus”
- “Unlike other products from your vet, only Frontline Plus completely annihilates the flea life cycle on dogs and cats by killing fleas as adults, eggs and larvae.”
- “Any flea or tick that comes into contact with your pet is dead meat.”
This is where one of the more obscure principles from your law school contracts class – puffery – comes in handy.
For those who can’t (or choose not to) remember that far back, “puffing” is the expression of an opinion, usually exaggerated, to try to make a sale; it is not intended to be a factual statement.
Although no hard numbers are given in any of the above statements, none of them could rationally be considered puffery.
Most notably, because of the repeated use of the word “complete.”
In this context – trying to sell flea-killing medication – “complete killing” isn’t opinion; it’s a synonym for 100% effectiveness.
According to Merial’s own study “FRONTLINE Plus killed 100% of fleas within 12 hours of application,” so Simms and the many other customers complaining of Frontline’s inefficacy must just be doing it wrong, right?
Not according to several other independent studies, which found Frontline’s efficacy to be somewhere between 86.3% and 95%, and never lasting for the full 30 days.
The complaint states that the National Advertising Division of The Council of Better Business Bureaus brought this to Merial’s attention and recommended that it discontinue claims that Frontline Plus is 100% effective.
Because Merial refused, it may be subject to punitive damages if the court finds that it truly acted intentionally.
Hopefully for Merial, its legal team is more effective at killing lawsuits than Frontline Plus purportedly is at killing fleas.