Scent-lok Update 6-22-10

[blacktailslayer]

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Mike Buetow, Gary Steven Richardson, Jr.,

Joe Rohrbach, Jeff Brosi, and Dennis Deeb,

individually on behalf of themselves and all

other Minnesota residents and entities

similarly situated,

Plaintiffs,

Civ. No. 07-3970 (RHK/JJK)

INJUNCTION

v.

A.L.S. Enterprises, Inc., Cabela’s Inc.,

Cabela’s Wholesale, Inc., and

Gander Mountain Co.,

Defendants.

On May 13, 2010, the Court issued an Order granting in part and denying in part Plaintiffs’ Motion for Summary Judgment (Doc. No. 335). In that Order, the Court found several of Defendants’ advertisements to be literally false, holding permanent injunctive relief to be appropriate under the Minnesota Consumer Fraud Act and the Minnesota Unlawful Trade Practices Act. Pursuant to the Court’s Order, Plaintiffs have filed and served a proposed Order Regarding Injunctive Relief and Defendants have submitted objections thereto.

As discussed in more detail in the Court’s Order, Defendants have published

numerous advertisements promoting their carbon-embedded clothing. Almost all of these advertisements utilize the slogans “odor-eliminating technology” or “odor-eliminating clothing.” Many utilize phrases such as “eliminates all types of odor” and “odor elimination,” or assert that the clothing can eliminate “100% of your scent” or “all human odor,” thus making the wearer “scent-free.” Some advertisements utilize graphics indicating that odor cannot escape carbon-embedded fabric. Additionally, Defendants have published advertisements stating that their carbon-embedded clothing can be

reactivated to “like new” or “pristine” condition.

Plaintiffs’ and Defendants’ experts agree that carbon-embedded clothing cannot eliminate odor. The experts also agree that carbon-embedded clothing, once saturated with odor, cannot be reactivated to “like new” or “pristine” condition. Accordingly, Defendants’ advertising described above and set forth in detail in the Court’s Order is literally false as a matter of law.

Based on the foregoing, and all the files, records, and proceedings herein, it is

ORDERED that:

1. Defendants A.L.S. Enterprises, Inc., Cabela’s, Inc., Cabela’s Wholesale, Inc., and Gander Mountain Co., or anyone that advertises on their behalf at any Defendant’s direction and within any Defendant’s control,1 are enjoined from publishing in Minnesota any advertisement that reasonably may be viewed by customers, including, but not limited to, print (including product packaging, accessories packaging (such as sprays, socks, or other accessories that include the slogans “odor-eliminating technology” or “odor-eliminating clothing”), catalogs, point-of-1 To the extent that Defendants’ advertisements are now distributed to third parties and are therefore outside Defendants’ control, the underlying Injunction does not apply.

Sale (including banners and display cases) or sales training materials, logos,

hangtags, graphics, clothing tags, and sewn-in labels), television, video, radio, or internet advertising that contains the following language:

a. Any statement or claim, whether in words or pictures, that carbonembedded clothing is odor-eliminating technology, an odor-eliminating

product, or that it can eliminate odor, or can make the wearer of the product

or the air coming from the wearer “scent free”, “odor free”, or otherwise

quantify any odor reduction as complete or removed in its entirety;2 or

b. Any statement or claim, whether in words or pictures, that carbonembedded clothing can be reactivated or regenerated to “like new” or

“pristine” condition or otherwise represent that all odor can be removed

from the product.

2. Defendants shall remove depictions from websites (including but not limited to www.scentlok.com, www.scentlokscience.com, www.gandermountain.com, and www.cabelas.com), and physically from retail stores, all advertising, including clothing, hangtags, accessories (sprays, tote bags and washes), logo wear (hats, shirts, etc.), decals, license plates, posters, banners, display cases, and other similar items that contain the words or phrases prohibited in paragraphs 1(a) or 1(b) above.

2 Several of Defendants’ advertisements use the slogans “odor-eliminating technology” or “odoreliminating clothing,” but further qualify this language with words or phrases indicating that carbon-embedded clothing cannot eliminate odor. These advertisements were not found by the Court to be literally false. The Court notes that qualifying language must be clear and

conspicuous in order to prevent advertisements containing prohibited language from running afoul of this Injunction.

3. Defendants shall fully comply with this Injunction on or before July 30, 2010, and file with the Court a sworn statement, titled “Proof of Compliance,” signed by an officer of each Defendant and its attorney, stating that all materials (written, electronic, video, sound) and products containing the false advertising have been removed from commerce. Such Proof of Compliance shall detail the steps taken by the Defendants to assure that their false advertising is no longer in commerce.

Dated: June 17, 2010 s/Richard H. Kyle

RICHARD H. KYLE

United States District Judge

Case 0:07-cv-03970-RHK-JJK Document 346 Filed 06/17/10 Page 4 of 4

[mikebohio]

spent alot of money on this stuff

[RTF]

All I can say is WOW.

[Ravin R10 man]

I always had my best luck when I wore my hunting clothes in the barn during chore time, or hung them up in the barn...I was just another cow..nothing to worry about..LOL....BANG!

[blacktailslayer]

Here is something the people from Scent-lok and Scent Blocker along with all the celebrities should have known about. It may have saved them all the trouble and money they are going through by loosing their court cases on their products.

For Release: 10/05/2009

FTC Publishes Final Guides Governing Endorsements, Testimonials

Changes Affect Testimonial Advertisements, Bloggers, Celebrity Endorsements

The Federal Trade Commission today announced that it has approved final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act.

The notice incorporates several changes to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address endorsements by consumers, experts, organizations, and celebrities, as well as the disclosure of important connections between advertisers and endorsers. The Guides were last updated in 1980.

Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results not typical” – the revised Guides no longer contain this safe harbor.

The revised Guides also add new examples to illustrate the long standing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers would not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of-mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service. Likewise, if a company refers in an advertisement to the findings of a research organization that conducted research sponsored by the company, the advertisement must disclose the connection between the advertiser and the research organization. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.

Celebrity endorsers also are addressed in the revised Guides. While the 1980 Guides did not explicitly state that endorsers as well as advertisers could be liable under the FTC Act for statements they make in an endorsement, the revised Guides reflect Commission case law and clearly state that both advertisers and endorsers may be liable for false or unsubstantiated claims made in an endorsement – or for failure to disclose material connections between the advertiser and endorsers. The revised Guides also make it clear that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on talk shows or in social media.

The Guides are administrative interpretations of the law intended to help advertisers comply with the Federal Trade Commission Act; they are not binding law themselves. In any law enforcement action challenging the allegedly deceptive use of testimonials or endorsements, the Commission would have the burden of proving that the challenged conduct violates the FTC Act.

The Commission vote approving issuance of the Federal Register notice detailing the changes was 4-0. The notice will be published in the Federal Register shortly, and is available now on the FTC’s Web site as a link to this press release. Copies also are available from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,700 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s Web site provides free information on a variety of consumer topics.

(FTC File No. P034520)

(endorsement testimonial guide.wpd)