May 17, 2010
Bestul: Scent Lok Found Guilty of False Advertising
By Scott Bestul
One of the outdoor industry’s heavy hitters took a big counter-punch last Thursday. That’s when U.S District Court Judge Richard Kyle issued a “summary judgement” that found ALS Enterprises, maker of the popular carbon-based “Scent Lok” hunting clothing, liable for false or deceptive advertising. Also named in the suit were Cabela’s Wholesale, Cabela’s Inc., and Gander Mountain Company, companies that either sold Scent Lok products or were licensees who used Scent Lok patents to make and market their own clothing.
[See a story update here]
The suit, first filed nearly three years ago, was brought against Scent Lok etal. by Minnesota hunters Mike Buetow, Gary Richard Stevenson Jr., Joe Rohrbach, Jeff Brosi, and Dennis Deeb. At issue were statements and graphics found in Scent Lok ads asserting that the carbon-impregnated clothing would “eliminate” human odor and allow a hunter to hunt “scent free.” The plaintiffs also took issue with Scent Lok claims that the clothing could be “reactivated” or “regenerated” in a household dryer. The plaintiffs alleged that these ads violated Minnesota’s Consumer Fraud Act, The Uniform Deceptive Trade Practices Act, and the Unlawful Trade Practices Act.
Though Judge Kyle sided slightly with Scent Lok on the “regeneration” issue, the rest of the news was not good for the clothing giant. “We felt the statements used by Scent Lok in their ads were clear and had only one meaning; that the product controlled all human odor, not just reduced some odor,” said Renae Steiner, an attorney representing the plaintiffs. “Expert witnesses proved that the product simply cannot work as it is advertised, and the judge agreed. Obviously, we’re very pleased with this outcome.”
Though different than a jury trial, the summary judgement process opens the door to further legal woes for Scent Lok, etal. “The plaintiffs now have the right to seek complete restitution for monies they spent on Scent Lok products,” Steiner said. “Unfortunately, the judge denied our case for a class-action status—which would have allowed any Minnesota hunter to join the suit—so damages will be limited to the original plaintiffs in this state. However, plaintiffs in eight other states—Florida, Wisconsin, Illinois, California, New York, Indiana, Maryland, and Michigan —have also filed cases against Scent Lok. We are scheduled to file class certification motions in those cases in July. We have been contacted by hunters in a number of other states, asking us (Steiner was joined by attorney Tom Leach in representing the Minnesota hunters) as well. We consider this case trial-ready and are prepared to proceed.”
That’s what we know so far. What does it all mean? We’ll be discussing that here in the coming weeks