Legal Stir Impacts Whirlpools

by WOHe

An interesting legal battle is promising to cause quite a stir
in the whirlpool bath industry, and could wind up having a major
impact on the way future whirlpools are manufactured, marketed and
sold.

The brouhaha, which emanates from a recent court action filed by
SANIJET Corp. against Kohler Co. and Jacuzzi Inc., focuses squarely
on the issue of whirlpool bath technology and its alleged potential
effects on consumers’ health.

In many ways, however, the case focuses just as squarely on two
equally intriguing questions.

Specifically:

  • What is the point at which a kitchen/bath product advertiser
    crosses the line between basing a product claim on what it believes
    is a genuine health-related concern, as opposed to a claim whose
    foundation rests almost exclusively on what others see as baseless
    “scare” tactics aimed primarily at selling product?
  • And, at what point should a manufacturer abandon traditional
    forms of marketing based on the virtues of its own products and
    attempt to enjoin competitors on the grounds of alleged
    truth-in-advertising violations?

These issues came to a boil with the news that SANIJET had filed
separate lawsuits against Kohler and Jacuzzi, charging that those
two companies make “false and misleading” claims in ads about the
sanitation of their piped whirlpool bath systems. The suits allege
that the ads in question “are false” and mislead homeowners and
specifiers “into believing that [the Kohler and Jacuzzi] whirlpool
baths are sanitary when they are not.” SANIJET also contends in the
legal action that the ads “not only deceive the public, but impair
SANIJET’s ability to compete fairly in the marketplace.”

For SANIJET, the legal action represents the latest move in an
effort to make major inroads into the highly competitive whirlpool
market.

SANIJET last year introduced its pipeless whirlpool technology
as an alternative to traditional piping systems, which, the company
contends, can promote the growth of infectious bacteria. SANIJET,
which has rested its entire marketing campaign primarily on the
supposed advantages of pipeless technology, has characterized its
system as “industry-changing technology” that’s not only safer than
piped units, but, in fact, threatens their very existence.

The company, however, has been thwarted to a large degree in its
efforts thanks, in part, to the formidable competition wrought by
plumbing products giants like Kohler and Jacuzzi.
SANIJET initially had its products carried by a network of plumbing
distributors, decorative showrooms and others. However, the company
soon found itself facing a “dilemma” that resulted from showroom
personnel being “uncomfortable” in pitching SANIJET’s products
while continuing to sell piped units.

SANIJET, in fact, recently announced that it would no longer
sell its products through dealers and distributors who also sell
piped whirlpool and air tub systems. The move,’
the company said, was aimed “at ensuring consumer awareness” about
its pipeless’
units and because it “could not rely” on traditional channels “to
fully discuss cleaning and sanitation issues associated with
competing technologies.”

The lawsuit against Kohler and Jacuzzi followed shortly on the
heels of that move.
Jacuzzi whose brand name literally defined the whirlpool category
for years ‘
has thus far declined comment on the lawsuit. In contrast, Kohler,
which has been’
manufacturing whirlpools for some 25 years, has been forceful in
its contention that because SANIJET, in effect, has failed to meet
its sales objectives based on the merits of its own products, it
has chosen to adopt a last-ditch strategy of attacking competitors’
products based on alleged health hazards that, in reality, don’t
exist.

Kohler points out that its products “have always met applicable
industry performance standards,” and notes that the company “has
never received a documented claim” attributing an illness to one of
its whirlpools. Kohler, which termed the lawsuit “frivolous and
aimed at creating an issue to alarm consumers needlessly,” has also
filed a counterclaim, charging that SANIJET “is using litigation
and media coverage as its primary marketing tool” and is using
“false and misleading descriptions designed to scare people into
buying its products.”

Which side will win this legal battle will, of course, be
determined by the courts. But regardless of who wins, two things
seem clear for the moment: The case carries important implications
and warrants close attention and the real winner, whatever the
outcome, will ultimately be the American consumer.

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