Court is determining the hunting smell test

A Minnesota judge has determined that the maker of popular "odor-eliminating" hunting clothing -- and retailers Cabela's and Gander Mountain -- are liable for false and deceptive advertising.

U.S. District Judge Richard Kyle ruled that the claims by the maker and distributors of Scent-Lok clothing that it will "eliminate" human odors don't pass the smell test.

ALS Enterprises of Muskegon, Mich., which makes and licenses Scent-Lok clothing under that name and others, said it will appeal.

The case, playing out in St. Paul, has national significance because the sale of hunting clothing with activated carbon to ostensibly hide odors is worth an estimated $100 million annually. It's sold primarily to deer hunters who don't want their scent to scare deer away. Consumers from eight other states also have sued.

Sales of the clothing in Minnesota, which has more than 500,000 deer hunters, are reported to be in the tens of millions of dollars annually.

The Minnesota case began in 2007 when five Minnesota hunters sued, claiming that the clothing doesn't work as advertised and that the makers and sellers misrepresented the product. After three years of depositions and jockeying, the case still hasn't gone to trial.

The judge, however, did issue summary judgments on some aspects of the case on May 13. And he is expected to issue an injunction soon to prevent ALS and the retailers from claiming that the clothing "eliminates" human odors.

The company issued a statement last week saying that its products work.

"Scent-Lok Technologies stands by its products and their ability to dramatically reduce human odor levels in the field to help hunter get close to game," the company said. Its website says that it is "the industry leader in scent-eliminating apparel."

Experts for both sides have testified as to the effectiveness or ineffectiveness of the clothing. But Kyle wrote in his opinion: "While the parties' experts have different opinions regarding the extent to which carbon-embedded clothing will reduce odor, all agree that the clothing cannot eliminate odor, even when new."

The definition of the word "eliminate" was at the heart of that issue. The company claimed that "eliminate" can mean something less than 100 percent of the odor. The judge disagreed and said that advertisements suggesting the clothing eliminates all human scent are false.

The judge also determined that the company's claim that the clothing can be "reactivated" to "like new" or "pristine" condition by putting them in a clothes dryer are false.

Many unanswered questions remain.

"A lot of people want to know the answer to the next question: If it doesn't eliminate odor, what does it do?" said Renae Steiner, an attorney with Heins Mills & Olson, one of two Minneapolis law firms involved in the cases in all nine states. "Our argument is the product doesn't do anything close to what they argue. We believe it has minimal impact."

Steiner said that Scent-Lok endorsees and officials with Cabela's and Gander Mountain have said during the proceedings that they have been "winded" or detected by deer while wearing Scent-Lok clothing.

"They all acknowledge that deer have smelled them when they used the product," Steiner said. "How is it that deer can smell you sometimes but not other times? That doesn't make sense. From a scientific perspective, it would have to work all the time."

An attempt to make the Minnesota case a class-action suit on behalf of Minnesota consumers failed. But Steiner said that attorneys hope to get some of the other suits declared class actions. The states include California, Florida, Illinois, Indiana, Maryland, Michigan, New York and Wisconsin.