Competitor files suit against SoClean for false advertising

  • The Peterborough-based SoClean is anticipating filing to dismiss a false advertising suit filed by a competitor. Staff photo by Ashley Saari

  • The Peterborough-based SoClean is anticipating filing to dismiss a false advertising suit filed by a competitor. Staff photo by Ashley Saari—

Monadnock Ledger-Transcript
Published: 7/10/2019 5:49:52 PM

SoClean says a false advertising suit filed against the company by a competitor is “without merit.”

“As a matter of policy, we don’t comment on pending litigation, other than to say that the claims in this case are without merit and that we will vigorously defend against them,” the Peterborough-based SoClean said in a written statement Wednesday.

The complaint was filed by 3B Medical, Inc. in the federal district court in April.

Both 3B Medical and SoClean make cleaning devices for continuous positive airway pressure (CPAP) machines, which are mainly used by people with sleep apnea or who have breathing issues while they sleep.

3B Medical challenged SoClean’s marketing, which says its machines uses “activated oxygen” to clean its machines, instead of water or harsh chemicals.

Activated oxygen is another name for O3 or ozone, which is the heart of 3B Medical’s allegations.

Based on the use of ozone, 3B Medical alleges SoClean’s claims in ads that its CPAP cleaners as safe, healthy and use a technology used by hospitals are misleading.

“SoClean’s representations are designed to mislead consumers into believing that the machine uses a benign form of oxygen to clean CPAP machines rather than a harsh gas that is generally only suitable for commercial sanitization under highly controlled conditions,” 3B Medical’s attorneys wrote in the complaint, filed with the federal court on April 22.

SoClean plans to file a motion to dismiss the claim, according to court documents.

“...[P]erhaps most importantly, the challenged statements are not false or misleading – are at most puffery – and thus not actionable,” wrote attorney Scott A. Rader in a pre-motion letter to the court, submitted on June 12.

Puffery is a term used to describe subjective or hyperbolic, but not outright fraudulent, advertising claims.

In its complaint, 3B Medical alleges SoClean’s advertising hurt 3B Medical’s business, as it might have caused customers to purchase SoClean products when they might have purchased 3B Medical’s instead.

In its pre-motion letter, SoClean’s attorneys argue 3B Medical has shown no evidence that their sales have been impacted by SoClean’s advertising. As SoClean’s advertisements do not pit the cleaner against 3B Medical’s devices, and the nature of the advertising doesn’t refer to the ultra-violet light system 3B Medical’s devices uses, it cannot be proven that SoClean’s advertising impacted 3B Medical’s sales adversely, the letter argues.

Federal district court judge Katherine Polk Failla has scheduled a pre-motion conference for Aug. 27 concerning SoClean’s anticipated motion to dismiss.

Ashley Saari can be reached at 924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.




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