spaghetti with tomato sauceWe love to eat! Maybe this is why we blog about taste claims and substantiation a lot! See here and here. And since at least one of us is always on a diet, when we indulge we like to pick the best tasting options. A competitive taste superiority message is incredibly powerful, and as such developing the necessary substantiation is exacting and expensive. Dollars to (better) tasting doughnuts, your less delicious competitor will be watching your back and seeking to test the quality of that evidence. Every year multiple challenges involving taste preference claims and the testing that supports them land on NAD’s plate to assess. One just this week actually involved dueling taste tests and considered the important question of who are the right people to test? We blogged about this before here in a case involving cereal looking at the right age range of people to test – buyers or eaters of the product. NAD’s general mantra is “taste tests should sample consumers who customarily use the products being compared.” The most recent case involving pasta sauce delved more specifically into this question of the appropriate testing universe.
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For Medical Use OnlyThe New York State Department of Health recently proposed a new set of regulations that would loosen marketing and advertising laws affecting New York’s medical cannabis program. The proposed regulations were published in the New York Register on August 23, 2017, and are open for a 30-day public comment period before the new regulations are to take effect.

The proposed regulations ease restrictions for registered organizations and dispensing facilities’ exterior signage by eliminating the previous requirement that all registered cannabis dispensaries display no more than one exterior black-and-white sign. The new regulations also removes the previous restriction that banned dispensaries from illuminating, “at any time, a sign advertising a marihuana product located on any physical structure.”


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DNA StrandEighty-eight percent of consumers are willing to pay more for healthier foods. Manufacturers have responded by focusing marketing campaigns on the health and safety benefits of their products, often at the expense of their competitors. But when Arla Foods portrayed a seven-year old girl defining a common hormone used to increase milk production in cows as “weird stuff” akin to a “six-eyed monster” with “razor sharp teeth” and electric fur, a Wisconsin federal judge decided the ad went too far and would likely mislead consumers. Despite Arla’s reliance on a small disclaimer and “scientific debate” over the health and safety of dairy products made from cows treated with rbST, the Court enjoined Arla’s campaign, finding it was likely to mislead consumers into thinking rbST was unsafe, unhealthy, weird, and “altogether something you should not feel good about feeding your family.”

On April 25, 2017 Arla launched a $30 million advertising campaign targeting “ingredient savvy” U.S. consumers seeking more information about the products they are eating and feeing their families. The centerpiece of the campaign is a 30-second commercial titled, “Arla Cheese Asked Kids: What is rbST?”


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sunshineThe coming of spring has been accompanied by good news for two food marketers—ConAgra and Bumble Bee Foods—in their respective court fights in California.

In the Northern District of California, a federal judge dismissed a putative class action against ConAgra alleging that the marketer’s Crunch N’ Munch product violated California’s unfair competition law since it contains partially hydrogenated oil (PHO), a food additive high in trans-fat. The complaint, filed by Tony Walker, specifically stated, “although safe, low-cost, and commercially acceptable alternatives to PHO exist, including those used in competing brands and even in other ConAgra products, ConAgra unfairly elects not to use safe alternatives in Crunch ‘n Munch in order to increase its profits at the expense of the health of consumers.”


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beerPerhaps some readers once (or still do!) enjoyed some Natty Light while listening to the Beastie Boys. Some time ago, we blogged about the ongoing Beastie Boys litigation against Monster Energy over copyright and right of publicity issues for a video Monster Energy posted on its website. The next case to watch is Kraft v. Anheuser-Busch, LLC where individual Kayla Kraft sued Anheuser-Busch for copyright infringement, invasion of privacy, and violation of her right of publicity for using her image in an advertising campaign. This quite delightful photo shows Ms. Kraft drinking a beer and wearing a fake mustache and was allegedly used by Anheuser-Busch on posters and coasters in its “Every Natty Has a Story” Natural Light campaign. According to Kraft’s complaint, a friend took the picture of Ms. Kraft with Kraft’s phone in February 2013. Ms. Kraft then posted the photo to Facebook. Her friend later assigned her copyright in the photo to Ms. Kraft who registered the photo with the U.S. Copyright Office, and Kraft sued on February 20, 2016. Anheuser-Busch’s Answer is due by April 7, 2017.
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orange splashWhich foods deserve to be labeled as “healthy?” The FDA considered this question at a public meeting on March 9th.

This public meeting was the latest stop on the FDA’s journey to redefine the term “healthy” in food labeling. The journey started almost 2 years ago in March 2015 when KIND received a warning letter from the FDA stating that many of its products labeled “healthy” were misbranded. KIND’s products, of which nuts are a primary ingredient, exceeded the “low saturated fat” threshold required to make the nutrient content claim “healthy” under FDA regulations.


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Last week, the Southern District of New York dismissed with prejudice a putative consumer class action alleging that containers for Muscle Milk protein powder violated New York consumer protection laws because they were approximately one-third empty at the time of purchase. More specifically, the plaintiff’s Amended Complaint contended that “Defendant CytoSport, Inc. intentionally packaged its Muscle Milk powder products . . . in large, opaque containers that contain approximately 30% or more of empty space” and that “[c]onsumers, in reliance on the size of the containers, paid a premium price for [the products] which they would not have purchased had they known the containers were substantially empty.”

This case involves a challenge to what is known in the legal vernacular as food container “slack-fill,” which is the empty space in a food product container (usually the space between the food itself and the container’s opening; think of a bag of potato chips). More technically, the FDA defines slack-fill as “the difference between the actual capacity of the container and the volume of the product contained therein.” Under the federal Food, Drug and Cosmetic Act (FDCA) and FDA regulations implemented thereunder, a food product is considered misbranded “[i]f its container is so made, formed or filled as to be misleading.” Similarly, a container is misleading under FDA regulations if its contents cannot be fully viewed and it contains “nonfunctional slack fill.” So unless you are using clear plastic packaging or some other form of packaging where consumers can easily see exactly how much is inside, you need to look at how much slack-fill is present and why.


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sunblockAt last year’s Kennedy Center Honors, Aretha Franklin brought down the house and brought President Obama to tears with her rendition of Natural Woman. Marketers relying on “all natural” claims also may feel like crying these days. We’ve blogged frequently about natural claims; see this recent post. Much of the misery in this area results from confusion over the use of the term “natural” in food. The Food and Drug Administration (FDA) has requested public comments on the use of the term, issued rather circular non-binding guidance, but thus far not issued regulations. The Federal Trade Commission (FTC) also has refused to issue guidance regarding natural claims. All of this confusion, however, will not stop the FTC from going after marketers making “all natural” claims that the FTC deems deceptive. In April, we discussed the FTC suing several marketers of sun screen and beauty products for deceptive all natural claims based on the presence of synthetic ingredients in the products. Four of those companies choose to settle, one choose to fight the FTC on the FTC’s home court — administrative litigation. Anyone want to guess how that turned out?

On December 12th, the FTC announced that it had granted summary decision in staff’s favor against California Naturel, Inc. The personal care products sold by California Naturel include an “all natural” sunscreen with SPF 30, which California Naturel described on its website as containing “only the purest, most luxurious and effective ingredients found in nature.” California Naturel conceded that its “all natural” sunscreen actually contained the synthetic ingredient dimethicone—making up 8% of the sunscreen formula. The FTC found that was sufficient to find the “all natural” claim deceptive in violation of Sections 5 and 12 of the FTC Act.


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We have written several times about the FTC’s effort to rein in what it sees as unsubstantiated cognitive improvement claims (see prior blogs: Brain Training, Lumosity, Word Smart, and Your Baby Can Read). Well, the states appear focused on this segment, too. On October 7, 2016, after two years of litigation and a trial, Judge Beth Andrus of the Superior Court of King’s County Washington issued a 59 page opinion resolving claims the Washington State AG had made against the makers of 5-Hour ENERGY® for alleged deceptive advertising in violation of the Washington Consumer Protection Act (CPA). For those of you who do not watch TV, browse the Internet, visit convenience stores or spend time with college students, 5-Hour ENERGY® is an “energy drink” marketed as a dietary supplement, with ingredients consisting of caffeine, B vitamins and other nutrients. The court found for the AG on some claims and for the defendants on some others. How the court reached its decision is worth spending a little time if you have the energy.

The case arose out of a multi-state investigation that began in 2012. While the other states appear to have closed their investigations, in 2014, Washington State sued and subsequently filed an amended complaint in 2015. At trial, the court considered live or deposition testimony from close to 20 scientific experts, including a former Director of the FTC’s Bureau of Consumer Protection, Howard Beales. The legal framework used by the court mirrored that used by the FTC in determining whether the claims were deceptive. The court considered five claims at trial, assessing the company’s advertising to determine whether the claims were made, and then the substantiation to support the claim if made.


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orange splashWhen courts decide to stay actions to await FDA guidance in an area, it’s only natural that our ears perk up. Which has been going on a lot, with cases such as Kane v. Chobani and Swearingen v. Santa Cruz Natural, Inc.

Last week, however, the Ninth Circuit Court of Appeals, which had previously opted to wait for FDA guidance with respect to evaporated cane juice, decided there was no need to wait for FDA to provide further guidance on “natural” claims in Brazil vs. Dole. In 2013, the lower court had granted in part, and denied in part, Dole’s motion to dismiss or strike the first amended complaint. (More about the significance of the 2013 date below.) The Ninth Circuit found that a decision not to stay or dismiss the case under the doctrine of primary jurisdiction was not an abuse of discretion.


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