Somehow this does not surprise me. I am having my own little tiff with 
Sharper Image at the moment. I think false advertising is a way of life 
with them.
Debbie


Toucanldy wrote:

> Periodically, on this group, someone asks about the "Ionic
Breeze," air
> purifier. Thought this might be of interest.
> 
> True Stella Awards #56: 1 December 2004              www.StellaAwards.com
> -------------------------------------------------------------------------
> 
> A Sharp SLAPP in the Face
> by Randy Cassingham
> 
>   San Francisco-based Sharper Image was founded in 1977 and is a
> successful catalog merchant and mall retailer. Consumers Union was
> founded in 1936 and is a non-profit product testing organization
> dedicated to getting objective product information out to consumers via
> its magazine, Consumer Reports.
> 
>   To perform its product tests, CU buys example products in retail
> stores (rather than accepting carefully selected samples from
> manufacturers) and puts them through exhaustive tests to answer the
> questions: do the products do what they're advertised to do? Do they do
> it well? And how well do they work compared to competing products?
> 
>   For an early 2002 review of home air filters, CU bought 16 air
> filtering units from a number of sources, including an "Ionic
Breeze" air
> purifier system from Sharper Image. The Ionic Breeze is the company's
> best-selling product; analysts say it may account for half of Sharper
> Image's sales, accounting for hundreds of millions of dollars of their
> income. Five different models sell in the range of $200-500.
> 
>   To test the 16 different air filters, CU put each unit in a sealed
> room and measured how much smoke and dust they could remove from the air
> over a 30-minute test period. Of the 16 units CU tested, the Ionic Breeze
> "Quadra" model came in dead last since it managed "no measurable
> reduction in airborne particles."
> 
>   Sharper Image was upset at the test results. "They said the Ionic
> Breeze needed to run longer," a CU spokesman said. "So
Consumer Reports
> went back and tested again, this time seeing how much cigarette smoke
> could be removed over 19 hours. It couldn't even clean the smoke from
> one-eighth of a cigarette" in that time.
> 
>   In late 2003 Consumer Reports again testing air filters, and the
> Quadra again ranked last in the rankings.
> 
>   Not surprisingly, Sharper Image was once again upset. "They told
> Consumers Union again that the test was unfair," the spokesman
says. "So
> Consumers Union asked what test they'd like [us] to run. They have never,
> to this day, recommended a test for Consumers Union to do."
> 
>   Sharper Image did, however, have a plan of action: it sued CU in U.S.
> District Court, alleging the articles in CU's magazine were based on "bad
> test procedures" and constituted "negligent product
disparagement."
> 
>   But wait a minute: aren't reviews part of what's covered by the First
> Amendment of the U.S. Constitution? Shouldn't a testing organization be
> allowed to publish its opinion as to what it thinks about a product, even
> if the manufacturer doesn't like what they say, based on that explicit
> right?
> 
>   Of course, the First Amendment does apply. So might the lawsuit by
> Sharper Image be considered a way to shut up a critic on an issue that
> affects the public?
> 
>   "Sharper Image could have just let it go without drawing more
> attention to Consumer Report's articles, but they didn't," says attorney
> Steven Williams, who represented CU. "I think they wanted to have a
> chilling effect on the media." And surely if Sharper Image prevailed,
> other reviewer would be "chilled" -- they'd have to think
long and hard
> about publishing a negative review, no matter how objective it was, when
> they might have to pay out millions of dollars in damages. "When you
> strike at the core of the First Amendment and sue someone to protect
> marketing," Williams says, "that's not really a proper use of the
> courts."
> 
>   Indeed, there's a name for such a speech-chilling case: Strategic
> Lawsuit Against Public Participation, or SLAPP, and it's a powerful tool
> large corporations can use against smaller foes to shut them up, even
> when their speech is protected by the Constitution -- and even when it's
> in the public interest for their opinion to be heard. The SLAPP is so
> powerful and so unfair, in fact, that many states have specifically made
> SLAPP suits illegal -- including California, where Sharper Image filed
> its suit.
> 
>   Williams filed a motion to dismiss Sharper Image's lawsuit on the
> basis that it was prohibited under California's anti-SLAPP law. U.S.
> District Corut Judge Maxine Chesney agreed that the suit was an attempt
> at squelching CU's First Amendment rights of free speech -- the very
> definition of a SLAPP. She not only dismissed the suit, she awarded CU
> $400,000 in legal fees that it spent to fight off Sharper Image's action.
> 
>   "The court finds Sharper Image has not provided sufficient evidence to
> support a finding that, under any of [their argued] theories, whether
> alone or in combination, it has a reasonable probability of establishing
> that any of the challenged statements are false," Chesney wrote in her
> decision.
> 
>   Sharper Image's lawyer said the retailer was "very disappointed in
> this result" and threatened to appeal the ruling.
> 
>   "Hopefully, going forward, companies will think twice about filing
> these types of suits," CU attorney Williams said afterward.
"It's not in
> their interest to be attacking free speech." Nor, indeed, is it in the
> public's interest.
> 
>   Still, even though CU won, other publications might still be chilled,
> Williams says. "Consumers Union may not have backed down, but how willing
> will magazines like Good Housekeeping be in the future to criticize
> products? How willing will newspapers be to do independent reviews? What
> this case was really about was the First Amendment and the right to free
> speech."
> 
>   Consumers Union has been sued 15 times over the reviews it has
> published in Consumer Reports, but it has never had to issue a retraction
> or pay any legal judgments.
> 
>   Obviously, anti-SLAPP laws don't give publications free reign to say
> anything they want; they don't entitle them lie about a product, for
> instance. But when they've been objective in testing, or only stated
> opinion, and are still sued, such laws give them the lever they need to
> defend themselves and recover their usually significant legal costs.
> 
>   So the case is a victory for the First Amendment, but don't cheer yet:
> while "many" states have adopted anti-SLAPP laws, many haven't. SLAPPs
> are thus still a powerful tool that can still be used to stifle free
> expression in many parts of the country, and that affects us all.
> 
> 
> SOURCES:
> 1) "Sharper Image Loses Suit Over Panned Product", The Recorder,
>   11-11-2004
>   http://StellaAwards.com/cgi-bin/redirect4.pl?56a
> 
> 2) "Sharper Image Fogs Up", San Francisco Chronicle, 14 November 2004
>   http://StellaAwards.com/cgi-bin/redirect4.pl?56b
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