US Judges 'More Skeptical' on Survey Evidence

Two recent US court judgements have sought to define the limits of surveys used as evidence in legal cases, and may indicate 'growing judicial skepticism of survey evidence' according to some commentators.

According to www.lexology.com , on August 4 the US Court of Appeals for the Third Circuit accompanied a unanimous decision in Pernod Ricard USA, LLC v. Bacardi USA, Inc. with the opinion that 'a consumer survey need not be considered when a label or other advertisement, on its face and taken as a whole, leaves no room for a reasonable consumer to be misled'.

Bacardi's 'Havana Club' rum was labelled as 'Havana Club brand Puerto Rican Rum'. Pernod sued Bacardi for false advertising, alleging that consumers were misled into thinking the drink was made in Cuba, but resorted to a consumer survey to prove that 'there was actual deception or at least a tendency to deceive a substantial portion of the intended audience'. 18% of those surveyed believed the product was manufactured in Cuba or from Cuban ingredients, but a lower court chose to ignore the survey, with the suggestion or implication that the interpretation of the 18% was not 'reasonable'.

Pernod appealed and the Circuit Court upheld the decision, although the latter's Judge Jordan clarified that [Lexology's words] 'this decision does not mean that factually accurate, unambiguous statements can never be misleading, but that courts can make a common sense determination of whether a reasonable consumer could be misled without considering a consumer survey.'

A judgement in another recent case, Mead Johnson in the Seventh Circuit, frowned upon the idea that 'survey research [should be] used to determine the meaning of words, or to set the standard to which objectively verifiable claims must be held'.

At present, notes Lexology, 'consumer surveys are a commonly-used means of establishing a statement's tendency to deceive' but it considers that 'This decision may indicate growing judicial skepticism of survey evidence and lead to a decline in the use of consumer surveys in false advertising cases.'

An article with slighly more detail is at www.lexology.com .