Companies doing business in California must now complete a comprehensive “survey” if selling particular products to consumers within the state. However, this is not your typical consumer satisfaction survey, but rather a submission of detailed information for each product meeting the requirements discussed below. The detailed submission must include include information on product formulas and
With the holiday season in full swing, marketers are tirelessly seeking ways to convince you that their product is the perfect gift for everyone on your holiday list. Although the bearded man of the hour at this time of the year is, of course, Santa Claus, many sellers try to ensure a competitive advantage by invoking the spirit of another hirsute man: Uncle Sam. But if you’re thinking about abandoning a red and green color scheme this year for red, white, and blue and plastering your products with “Made in the USA” or “American Made,” some recent California litigation reminds us that sellers should be careful when they feel the patriotic spirit overtaking the holiday spirit.
As we have noted several times previously on this blog, “Made in the USA” claims are tricky animals that can come back and sneak up on you like a whack from the stick-bearing Krampus (the nasty European sidekick to Santa Claus best known for walloping children with bundles of birch branches). The Federal Trade Commission (“FTC”) has been active in this area, bringing a number of cases over the years to enforce its standard that to be able to make an unqualified “Made in USA” or “Our products are American made” claim, without any limits or qualifications, a product must be “all or virtually all” made in the U.S., i.e., all significant parts that go into the product must be of U.S. origin and all processing must take place in the U.S. The FTC guidance in this area has made it clear, however, that truthful qualified “Made in USA” claims, such as “Made in USA of foreign and domestic parts” or “Assembled in USA of parts from China” are permitted.Continue Reading ‘Tis the Season–for “Made in the USA” Claims
Kids say the darndest things, and California wants to make sure that when it comes to their online postings those kids get a do-over. On January 2015, California law SB 568 entitled “Privacy Rights for California Minors in the Digital World” will go into effect, allowing minors to remove certain posted online content as well as restricting certain types of online advertising directed to minors.
We have previously discussed California (see posts) and its continued stance as a leader in data privacy legislation, and this is no different. California’s enactment of SB 568 focuses on expanding the online safeguards that the FTC put in place for minors with COPPA, as well as giving a nod to a topic of heavy debate in Europe—the right to be forgotten.Continue Reading California Enacts Law Protecting Minors’ Digital Privacy Rights
We reported on July 16, 2014 that John Wayne Enterprises, LLC (“JWE”), the entity owning the rights to the name, image, and likeness of John Wayne, a.k.a. The Duke, had sued Duke University in California federal court to protect JWE’s right to market alcohol products with the mark “Duke” or “Duke John Wayne.” Duke University
“There’s been a lot of stories about how I got to be called Duke. One was that I played the part of a duke in a school play—which I never did. Sometimes, they even said I was descended from royalty! It was all a lot of rubbish. Hell, the truth is that I was
Is the “surf up” again in California for “Made in USA” class actions? A prior wave of “Made in USA” class action litigation in California crashed up against a number of legal difficulties, including how one calculated damages for buying a product “mislabeled” as “Made in USA.” However, the California Supreme Court in the Kwikset case ultimately resolved this issue largely in plaintiffs’ favor.
Now a class action complaint has been filed on June 9, 2014, against designer jean company Citizens of Humanity (“COH”) and Macy’s Inc. (“Macy’s”) which alleges that the jeans were falsely labeled as “Made in USA” when, in fact, many of the components were imported. This follows on the heels of a settlement in a class action filed earlier this year against Lifetime Products, Inc. and The Sports Authority, Inc. for allegedly misusing the “Made in USA” label on basketball products. Defendants agreed to a permanent injunction and to provide gift cards or a basketball to each class member ranging in value from $12.50 to $30 and to make annual charitable contributions of $325,000 over a five-year period.Continue Reading Designer Duds? Class Action Alleges a “Made in USA” Fashion Faux Pas
In an important development for product demonstration claims, a federal court recently dismissed with prejudice a lawsuit claiming that Apple’s advertising overstated the voice recognition capability for Siri.
When Apple first launched its iPhone 4S the company touted the inclusion of a voice-activated personal assistant, called “Siri.” A number of commercials were aired in which consumers were shown querying Siri with requests regarding traffic, weather, sending texts, restaurants, gas stations and music. To see Martin Scorsese using Siri click here. The advertising claims at issue in the Siri case are “product demonstration” claims. Product demonstration advertising claims often are powerful and persuasive because they provide the consumer with direct evidence about how great the product works. But they are also subject to attack, often on the theory that they fail to depict the performance of the product in a way that replicates typical usage by ordinary consumers in the marketplace.
In the lawsuit, plaintiffs claimed that they purchased the iPhone 4S and then tried to replicate many of the same types of questions to Siri that were featured in the commercials. Plaintiffs alleged that Siri either failed to respond to the questions or required multiple attempts before being able to do so and that Siri’s alleged failure to perform as advertised was a violation of California law.
Continue Reading Siri, Should Plaintiffs’ Case Be Dismissed? Yes.
The FTC scored two recent victories in advertising cases litigated in California, and, in both cases, the court accepted the FTC’s view of the world with little exception. You can expect that the FTC will cite to these cases frequently going forward.
Lights of America
In 2010, the FTC sued Lights of America Inc. and its principals in the Central District of California alleging that the company overstated the light output and life expectancy of their LED light bulbs on the product’s packaging and in brochures, as well as falsely comparing the brightness of their LED bulbs with that of other lights. The matter was litigated heavily over almost four years culminating in a bench trial from October – November 2012. Prior to trial, the court granted the FTC summary judgment on defendants’ advertising claims that their bulbs provided the same or comparable light to incandescent bulbs. In September 2013, the court entered 122 pages of post-trial findings of fact and conclusions of law. On February 20, 2014, the court entered a $21 million judgment against
Continue Reading FTC Goes 2 for 2 in California
As of January 1, 2014, California law requires operators of websites and online services to publicly disclose how they respond to “do not track” (dnt) signals, though the exact requirements vary depending on whether an entity is a first party (e.g., web publisher) or third party (e.g., ad network). The new law will not require companies to honor dnt signals.
Operators of websites and online services should be prepared to update their privacy policies.
Background
On September 27, 2013, Governor Jerry Brown signed into law AB 370, an amendment to the California Online Privacy Protection Act (CALOPPA). CALOPPA requires online operators to post privacy policies stating: (1) the categories of personally identifiable information (PII) collected through their website or online service, (2) the categories of third parties with whom the operator may share PII, (3) the process by which a consumer may review and request changes to PII collected through the site or service if such a process is maintained, (4) a description of how operators notify consumers of material changes to the privacy policy, and (5) the effective date of the privacy policy. AB 370 will not change these requirements or the meaning of PII, but adds additional disclosure obligations described in the next section.
Continue Reading California’s Do Not Track Disclosure Bill
As we noted yesterday, it’s not necessarily a given that an allegedly misleading advertising claim leads inexorably to a viable class action lawsuit (most likely venued in California.). Here’s one such recent example as to why.
In the federal District Court in Los Angeles this past month, Chipotle Mexican Grill successfully defeated a class action plaintiff’s motion for class certification.
Chipotle advertises that its products contain “Naturally Raised” meats, meaning “coming from animals that are fed a pure vegetarian diet, never given antibiotics or hormones, and raised humanely.” And its products generally do. Occasionally, however, some Chipotle restaurants run out of their supply of such meats and substitute conventional meats. When this has occurred, those Chipotle locations have posted signs at the point-of-purchase, alerting their patrons of that fact.
Continue Reading Chipotle Case Gives Hope Against Class Actions