Every parent does it. Sits down for a minute with our kids to watch Phineas and Ferb and we look up and a half hour has gone by. Marketers know this can be a great time to capture our attention and affection when we are relaxing with our kids. But CARU recently reminds us that if the entertainment is child-directed, some products just can’t be advertised.

PharmaCare US advertised its Kids Smart Hi DHA-Omega Fish Oil supplement during an episode of GI Joe Renegades. The ad was clearly talking to parents as it featured Soleil Moon-Frye, actress turned super mom, recommending the brain-friendly supplement. The vitamin looks like a red gummy candy. CARU said notwithstanding that PharmaCare intended to target 25-40-year-old moms and the substantiation provided by PharmaCare, the Guidelines prohibit advertising products that pose a safety risk to kids on programming directed to a child audience. Here the dietary supplements could pose such a risk if found in the house, mistaken as candy and ingested in large amounts.  CARU recommended not advertising dietary supplements on kid tv.

A second case involved a banner ad and webpages on the scholastic.com website for Pedia-Lax, a children’s laxative. The ad included a disclosure that read “parent ad”. CARU took a hard line that any product labeled “Keep out of reach of children” should not be advertised on children’s portions of the Scholastic website. Scholastic similarly said the ad was directed to parents and highlighted that most visitors to its website are there to purchase books for their kids. CARU recommended removing this ad from the family portion of the website. The decision was interesting in that it did not respond to Scholastic’s argument that it was not the advertiser but the web host. It will be interesting to see if CARU pursues more cases against a website rather than the advertiser paying to place the ads. It does appear that CARU would not find the ads inappropriate on some portions of the Scholastic website but just not the children or family portions.

And so these cases serve as a reminder that advertisers need to find ways to reach parents other than through programming or websites they might watch or visit with their kids for products that can be a danger to kids if misused.

NAD has now brought another monitoring case against an advertiser of mascara showing spokesmodel starlets with lashes that were plumped or lengthened with something other than the advertised product. The prior cases involved post-production retouching and the newest case against L’Oreal involves adding some eyelash inserts to the models in two different ads. The express claims in the spots were all found to be substantiated adequately, including 8x bigger, smoother, even, length plus impact without extensions. NAD’s position, and it has been consistent, is that celebrities in mascara ads are not simply brand endorsers but are live product demonstrations and as such, their lashes cannot be altered with anything other than the advertised mascara. And a disclosure that the shown lashes were enhanced post- or pre-production will not cure any alleged deception (here L’Oreal added “styled with lash inserts”). NAD asserted that the advertising reasonably conveys that the model got her long lashes solely from the mascara and that customers will get lashes like those depicted. Continue Reading NAD Product Demonstration Finding Not So Pretty for Advertiser

Communications_TowerThe cell phone wars should ensure the continuing viability of NAD and Lanham Act courts for all time. As noted in a recent challenge by AT&T to T-Mobile advertising, this is an industry that is rapidly innovating and highly competitive, and characterized by direct comparative claims.  ‎Staying on the right side of the line, as this case reminds us, between touting demonstrated performance benefits that distinguish your service and overstepping into false disparagement can be as hard as not dropping a conference call on the Acela between DC and NY.

Without getting too into the telecom technical weeds, we can highlight the difficulties T-Mobile had with a few examples from this multi-claim challenge. T-Mobile had solid data showing it had more spectrum per customer and thus more bandwidth. It claimed it had 50% more bandwidth than AT&T and because of this was less congested and less likely to slow down. There was good data to show download speeds on T-Mobile were faster in areas where AT&T ‎used a similar network. NAD was not persuaded that T-Mobile had shown such an advantage in areas where AT&T had upgraded its network to LTE. The result was a recommendation the the claims of more bandwidth, less congestion be discontinued or modified to explain the circumstances in which a customer might enjoy this benefit. NAD added that any such clarification must be explained in terms a customer will understand and not by insider reference to particular networks or technologies.

Another example is the better “call quality” claim. T-Mobile had good third party data showing their calls were comparatively clearer to hear. AT&T asserted that the claim as framed was too broad and could be reasonably understood to refer not only to audio clarity but to less frequent dropped calls and other connectivity quality issues. Both sides submitted consumer survey evidence, one showing confusion and one did not. (As an aside this case file included four separate consumer surveys! )  The call quality surveys tested different ads, one of which used call quality in the context of only audio quality and one which tested the phrase in an ad that also referenced dropping call. The NAD set both of these aside and said it had to make a general conclusion about how reasonable consumers might understand this claim because it was used in different contexts by T-Mobile. It recommended that T-Mobile be more specific with its claim to narrow it appropriately to sound quality.

‎Another good reminder is the NAD conclusion that claims like Most Advanced Network and Faster 4G Speeds needed to be clarified that they were not competitive comparative claims but rather claims regarding T-Mobile’s innovations and comparisons to their prior service. We did see NAD adopting a slightly more liberal, less literal stance when it found the tagline “T-Mobile has you covered like no one else” to be permissible puffery and not a comparative superior network coverage claim.

Beginning Monday September 30, NAD, CARU and ERSP hold their annual conference on advertising issues in New York City. (For a link to the conference click here). We’ll be there and we suspect many of you will be too. If you are or if you’re already in the NYC area or you just want an excuse to go to NYC you are welcome to attend a party we and some of our Venable colleagues are throwing Tuesday night at the W Hotel near the conference. If you’d like us to send you an invitation click on one of our names and email us. Hope to see you at the party.

 

astroturfTo many sports fans, Astroturfing means laying down plastic grass especially for use in the multi-purpose stadiums so popular in the 1960s and 70s.  As a playing surface, AstroTurf was known to be hazardous to the bones and joints of those who played on it.  Today, however, the term Astroturfing has taken on a new life in the advertising world.  A recent series of enforcement actions by the New York Attorney General (“NY AG”) demonstrates that Astroturfing in advertising can be as hazardous to those involved as the playing surface was at Veteran’s Stadium.  

In the ad world, Astroturfing refers to efforts to improve a marketer’s online reputation by paying people to post favorable reviews of your product or service on social media.  On September 23, 2013, the NY AG announced agreements with 19 companies imposing more than $350,000 in fines for engaging in Astroturfing.  The companies named include both merchants and search engine optimization companies that provided Astroturfing as part of their services for merchants.  Some of the companies in the crackdown used their own employees, while others hired contractors who tried (apparently unsuccessfully) to mask their identities.  Among the companies named was a licensee of a Scores gentleman’s club franchise, which orchestrated over 175 reviews that were as fake as some of the “attributes” of the entertainers at that establishment.

In announcing the crackdown, the NY AG pointed to research indicating that 90% of consumers say that online reviews influence their purchasing decisions and that increases in ratings on Yelp or similar cites translates directly into increased revenue.  Some predict that by 2014 between 10 and 15% of social media reviews will be fake.

The NY AG maintained that preparing or disseminating false reviews that a reasonable consumer would take to be a neutral third-party review constituted false advertising under NY law.  This approach is similar to that taken by the FTC in its Endorsement and Testimonial Guides and in enforcement actions against Legacy Learning Systems, and Reverb Communications. 

Readers of this blog already know that paying people to write phony positive reviews about your product or service is a bad idea.  In case there was any doubt, these enforcement actions should remove it.  The harder question faced by marketers is how to disclose more subtle material connections between reviewers or bloggers and marketers such as free samples.  For the answer to that question, we suggest you follow the advice of one on-line reviewer:  “If you have questions regarding advertising law, the lawyers in Venable’s Advertising Group are the best; they are smart, funny, good looking, great at parties, and provide practical advice that marketers can use.”

spaghettiA recent NAD decision once again illustrates how the NAD is often at the forefront of opining on many currently trending claims.  The holy grail for any pasta loving carb avoider ‎is a great tasting but healthier spaghetti. And as companies increase their whole grains and overall nutritional profile, comparative claims and challenges are sure to follow.   Barilla recently challenged a claim by Ronzoni Healthy Harvest pasta that it has 100% whole grains and 56 grams per serving, compared to Barilla the leading brand of whole grain pasta, with 28 grams. Barilla’s challenge asserted that the advertisement falsely implied that Ronzoni also has twice the fiber as Barilla (when Barilla has 6 grams of fiber compared to Ronzoni’s 5 grams).

Barilla argued that it is commonly recognized that consumers confuse whole grains and fiber. Barilla asserted the confusion is compounded by Ronzoni’s website which calls out its 100% whole grains and adds “a whole grain is a grain that still has its outer covering, which is nutritionally rich in vitamins, minerals and fiber. One serving of Ronzoni Healthy Harvest pasta has 20% of your daily recommended fiber intake.”

Both the advertiser and challenger pointed to FDA draft guidance on whole grain statements. NAD acknowledged that FDA recognizes that‎ whole grain claims can give false messages as to how much nutrient content a food has, but the guidance seems to focus on foods that have small amounts of whole grains. In this case NAD noted, Ronzoni does have 100% whole grains and is also a good source of fiber with 5 grams.

NAD concluded that it would not prohibit Ronzoni’s claims absent specific evidence that consumers take away a false message that Barilla has less fiber. It did not rely on Barilla’s use of more general consumer studies showing many people believe whole grains always equal the same amount of fiber.   NAD noted that Ronzoni does not make reference to fiber when it makes the whole grain comparative claim to Barilla. It also found that people eat whole grains for benefits beyond fiber so a 2x fiber claim is not a necessary implication from a 2x whole grains claim.  All of which goes to show that often grappling with implied claims can be as messy as eating a plate of spaghetti.

Some would say that doing business in California can sometimes pose extra challenges.  Anyone who’s spent any time in the Golden State is, of course, familiar with omnipresent signs like the one above.  However, California has just taken a significant step forward in what could be described as an effort to reduce the presence of products that require such signs.

In late August, California approved the Department of Toxic Substances Control’s (DTSC’s) landmark Safer Consumer Products Regulations. These regulations help implement the State’s Green Chemistry Initiative designed to accelerate the use of safer products through a science-based process that evaluates chemicals of concern and identifies safer alternatives. There are four primary steps: Continue Reading Living Better through Chemistry: California’s Landmark Safer Consumer Products Regulations Get “Green” Light

Remember when George Bush was lambasted for supposedly not knowing what a price scanner was?  Scanners now are ubiquitous.  But are you one of those people that watch as your items are scanned to make sure the price is accurate?  If not, maybe after reading this blog you will be.

Missouri Attorney General Koster recently sued a drug store chain alleging the company has been engaged in several unlawful practices that violate Missouri’s Merchandising Practices Act.  The complaint focused on price scanner inaccuracies.  Many states have laws that put caps on the number of acceptable inadvertent variations there can be between a posted price on a store shelf or sign and the price charged for the item at check out.  Here the retailer allegedly “consistently and systematically displayed inaccurate sales tags, overcharged customers, failed to remove expired sales tags, and failed to consistently ensure the price charged is the same as the price advertised.”  Prior to filing suit the AG’s office conducted undercover visits to eight stores in five cities across Missouri.  Of a total of 205 purchased products, investigators found 43 price discrepancies, with overcharges ranging from a few cents to more than $15.00 per item.  No store means to do such things, of course, so the perhaps less than helpful lesson here is be careful and try to update your store signage and shelf labels, and for chains to put a program in place to check for individual store compliance. Continue Reading Missouri AG Not Sold on Loyalty Program Pricing Practices

Our colleagues have noticed something different.  Have you lost weight, they’ve asked.  Have you had some work done?  Are you coloring your hair?  Actually, we’ve redesigned our blog site.  Along with giving it a new look we’ve added a feature called responsive design that we think is pretty cool.  So now if you want to read our blog on your smart phone, your iPad, your laptop or your 90 inch LED HDTV the blog will “respond” (get it?) to your screen size and display appropriately.  Check it out when you get a chance and tell your friends and colleagues to check it out as well (and subscribe).  Responsive design may even help overcome some of the issues the FTC has raised (and that we’ve blogged about) relating to online disclosures. 

And while we try to keep abreast of the latest technological developments, and we’re sure your marketing departments do as well, it’s important to keep in mind that the FTC is keeping current too.  Consistent with its goal of trying to apply time-honored principles to new and changing technology and advertising techniques, the FTC has announced a workshop for December 4, on “native” advertising.  For anyone who thinks this might be referring to advertising by indigenous peoples, “native advertising” refers to advertisements that are designed to closely resemble the online content in which they are embedded – for example, paid search engine results or “other content you might be interested in” ads.  The FTC has provided guidance on its expectations to differentiate native from sponsored results on search engines as we recently blogged about here.  The FTC’s concern – as it has always been, dating as far back as some early infomercials – is that consumers are able to clearly differentiate between paid advertisements and content.  Submissions of research, topic recommendations and requests to participate as panelists are due by October 29, 2013.

The FTC’s recently announced settlement with local car dealers in suburban Washington, D.C. and Cleveland, Ohio illustrate two important points.

First, who are the people in your neighborhood?  Do they include FTC employees, because they are consumers too.  (And if your kids have all just left for college and you’re feeling nostalgic, click here.) Now it may just be a coincidence but the challenged dealers were located near cities where the FTC has its headquarters and a regional office.  We’ve seen many an investigation launched because of an ad an FTC employee saw or heard, or a product they purchased. Continue Reading Who Are the People in Your Neighborhood? FTC Settles with Two Local Car Dealers