Misrepresentation in Sales: Throwing the Liability out with the Bathwater

(This post was submitted by Patrick Hankins, a rising 3L at Marquette University Law School and an intern at Quiles Law)

Instagram influencer, Belle Kirschner, better known as Belle Delphine, made recent headlines by selling “GamerGirl Bath Water” – jars that allegedly contain Delphine’s bathwater. Most recently, Delphine had her Instagram account, with its 4.5M followers, banned due to its NSFW content. Despite selling out of the product in three days, Delphine reportedly had unsatisfied customers, one of whom claimed that their jar did not contain Delphine’s used bath water. Allegedly a molecular biologist, the fan claimed to have used “an eDNA analysis through ddPDCR” to verify the existence of skin cells in the GamerGirl Bath Water only to conclude that the jar lacked any human DNA. As a result, the individual claimed that Delphine was liable for a class action lawsuit because she advertised the water as “bottled while [she’s] playing in the bath.” Though the allegation was later proven false, could Delphine’s unsatisfied customers rise up and sue her, as the supposed molecular biologist suggested, if the product sold was not the product advertised? This post discusses several of the legal issues involved in misrepresented sales as seen through the lens of the "GamerGirl Bath Water" allegations

False Advertising
False advertising is the intent to promote the sale or increase consumption of services with a false or misleading statement in advertisement. False advertising claims can be based on either state or federal laws.

Virtually every state has laws that generally prohibit deceptive or unfair marketplace acts and practices. The extent of state law claims is generally limited to false advertisement that is significantly harmful to the public or is outrageously flagrant. Though false advertising laws can vary depending on state, a majority of states require a plaintiff to show they suffered injury, harm, or loss due to a deceptive, unfair, or illegal trade practice. As a result of this variation among states, several states have adopted the Uniform Deceptive Trade Practices Act as state law, especially to enable class action lawsuits.

Bait and Switch Advertising
A traditional “bait advertisement” is intended to entice customer to buy a product that an advertiser does not intend to sell in an attempt to switch the customer’s attention to another product. The reason that the bait and switch method is unlawful is because the advertiser is not making a bona fide effort to sell the advertised product. An advertisement is not a bona fide effort when indicated by three factors.

First, the advertisement creates a false impression about the product or otherwise misrepresents the product to sway a customer to a different product.

Second, the advertiser discourages the purchase of the product. Typically, a seller discourages the purchase of its advertised product when: (1) it refuses to show, demonstrate, or sell the product as specified in the offer; (2) it disparages the advertised product or its related offer; (3) it fails to have a sufficiently quantity of the product to meet reasonably anticipated demand unless it discloses that supply is limited; (4) it refuses to take orders for the product within a reasonable period of time; (5) showing the product as defected for its advertised purpose; and (6) a sales plan discourages sales personnel from selling the advertised product.

Third, a sale is made, but rescinded for selling another product in its place. Practices that can satisfy this fact include: (1) accepting a deposit for the advertised product but switching to a higher-priced product; (2) failing to deliver the advertised product in time for a refund; (3) disparaging the advertised product or a guarantee in connection with it; and (4) the delivery of a defective, unusable, or impractical product for its advertised purpose.

Notably, even if a seller later discloses true facts of the advertised product, it is still illegal to garner customers’ attention by deception.

Fraud and Deceit
Fraud is a knowing misrepresentation of the truth, deceit, or concealment of a material fact to deprive another of money, property, or legal right.

Deception, fraud, misrepresentation, and the nondisclosure of material facts against consumers in sales transactions are prohibited by consumer protection statutes. Generally, states and the federal government primarily measure the illegality of a seller’s conduct by its effect on a consumer, regardless of whether a seller intended to deceive consumers. It is not necessary to prove that a business’s statement or act was intentionally deceiving. A seller is deceptive when the effect of its conduct upon a consumer mislead him or her into purchasing something that was not intended or caused a consumer to act differently than otherwise. Under state laws, as long as an act or practice misled the consumer and had an adverse effect, deception can be found.

Conclusion
To avoid lawsuits from dissatisfied consumers, don’t deceive them with misleading advertisements and products – that includes jars of bathwater or other memorabilia. If the allegations against Delphine had held true, liability would arguably attach for false advertising and/or fraud, though it would certainly be quite the odd case to pursue. Regardless of how unique any memorabilia for sale may be, there should always be the intent to sell the products advertised without misleading the customers and all sales should be carried out lawfully.