Many of our colleagues have remarked that a favorite pastime during the upcoming holidays is to watch their favorite holiday movies. That may be more important this year. One that many mention is “Elf”, starring Will Ferrell as a human, raised as an elf at the North Pole, who decides to travel to New York City to locate his real father, played by James Caan (yes Sonny). The movie features Buddy (Ferrell) in a series of fish out of water scenes in New York, including one in which he bursts into a greasy spoon eatery with hearty congratulations after seeing it sporting the puffery sign “World’s Best Cup of Coffee.”
That came to mind when seeing a New York federal recently rejected a proposed class action accusing Starbucks of deceptively calling its drinks the “best coffee for you” while allegedly using harsh chemicals to kill roaches at some of its shops. Order. Specifically (and the court accepted allegations as true on a motion to dismiss), employees allegedly would deploy the Hot Shot No-Pest 2 Strip. The No-Pest Strip is a time-release device that emits a powerful pesticide, 2,2-dichlorovinyl dimethyl phosphate (often abbreviated “DDVP”), into the air. Plaintiffs claim the CDC warns that sufficient exposure to DDVP can cause symptoms as serious as coma and death.
Not surprisingly, though, none of the customers complained that they got sick. Instead, the customers alleged that this ran afoul of New York consumer protection laws that prohibit false advertising and deceptive business practices. See New York Gen. Bus. Law §§ 349–350.
First issue, the customers did not allege any statements likely to mislead reasonable consumers.
Nearly all of the language the customers objected to consists of obvious “puffery”— subjective
claims about products, which cannot be proven either true or false.” Time Warner Cable, Inc. v.
DIRECTV, Inc., 497 F.3d 144, 159 (2d Cir. 2007). Only one statement cited in the amended complaint came close– that Starbucks’ baked goods contain “no artificial dyes or flavors.” But the alleged bug killer is not an artificial dye or flavor. No reasonable consumer would understand that statement to convey any information about the company’s use or non-use of pesticides in its stores.
So plaintiffs next trotted out the synergy theory- that the whole of Starbucks’ brand messaging is more
than the sum of its parts. That theory is rarely recognized, and even then in the context of innuendo that conveys a clear statement about the quality or safety of the defendant’s product. The customers here did not allege that Starbucks’s advertisements communicated—even indirectly—any specific details about its products. A claim that a seller’s wares are “premium” or “the best” cannot support such a cause of action for deceptive practices, whether made in a single advertisement or a hundred, said the Court.
The Court also found that further amendment would be futile because none of the statements in Starbucks’s advertising convey or imply any information related to the use of pesticides in its stores. The Court therefore dismissed the amended complaint with prejudice.