Category Archives: Product Labeling

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Insurance Coverage for “Advertising Injury” May Still Leave Businesses on the Hook for False Advertising Claims

Many businesses acquire commercial liability insurance coverage to protect against “advertising injury” resulting from their marketing practices. But while the term “advertising injury” on its face may sound comprehensive, its definition in the insurance policy may be narrower than you think. As a result, some businesses have received a rude awakening after learning: (1) they … Continue Reading

Ninth Circuit Decides Not To Stay Natural Case, But Read the Fine Print

When 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 … Continue Reading

Class Action Labeling Claims Partially Evaporated, But What’s Left May Signal a Revival of “Evaporated Cane Juice” Claims

Earlier this year, we discussed the Ninth Circuit’s decision staying a consumer class action against Chobani challenging its listing of “evaporated cane juice” as an ingredient on its yogurt labels. According to the plaintiffs in that case, “evaporated cane juice” was simply code for sugar, and Chobani therefore allegedly misled them about the healthiness of … Continue Reading

It’s Not Nice to Fool Mother Nature: FTC Takes Aim at “All Natural” Claims

While the Food and Drug Administration (FDA) is still considering whether to issue guidance over the use of the term “natural” in food products, the Federal Trade Commission (FTC) is steamrolling ahead this week with a flurry of settlements and a complaint over deceptive use of the terms “all natural” and “100% natural” in the … Continue Reading

Consumer’s Green Tea Class Action De-Caffeinated

C.S. Lewis once wrote that “[t]ea should be taken in solitude.”  A California federal court agrees, ruling Tuesday that a consumer’s false labeling claims against tea manufacturer R.C. Bigelow could not proceed as a class action due to the lack of an acceptable classwide damages model as well as standing. The consumer’s complaint targeted two … Continue Reading

Ninth Circuit Stays Class Action Food Labeling Lawsuit Until the FDA Completes Review

The pitter patter of class action footsteps that food companies hear may have gotten a bit quieter, at least for now, based upon a Ninth Circuit decision in Kane v. Chobani this week.  The lawsuit centers on Chobani’s use of the terms “evaporated cane juice” and “only natural ingredients” on its yogurt labels.  According to … Continue Reading

Working Toward a Cohesive Approach to “Made in USA” Claims

On February 1, 2016, the Federal Trade Commission (FTC) filed an action against Chemence, Inc., an Ohio-based manufacturer, advertiser, and distributor of cyanoacrylate glues (often referred to as “superglues”). In its complaint, filed in the United States District Court for the Northern District of Ohio, the FTC alleges that Chemence is deceiving consumers by claiming … Continue Reading

NAD Sure Don’t Like Those Christmas Cookies Babe

Well not exactly.  They do not care for Indonesia Butter-Flavored Cookies labeled as Danish Butter Cookies.  But it gave us an opportunity to share one of our favorite country Christmas songs from George Straight with our dear readers: We blogged about this case when it came out this summer.  The NAD recommended the company discontinue … Continue Reading

FTC Goes Seal Hunting: Issues Warning Letters About Green Seals

No, PETA will not be in an uproar.  But if you certify Green claims or use someone else’s certification on your products you may want to continue reading. In the past we have noted that third-party certifications and endorsements relating to environmental or “green” attributes are heavily scrutinized by the FTC as more “green” products continue … Continue Reading

NAD Finds Something Fishy With Claims That Contradict

In a CRN challenge, NAD recently reviewed claims for Omega XL, an omega-3 fatty acid supplement, sourced from mussels rather than fish. The supplement was backed with lots of science, including product specific testing. So much so that NAD upheld the strong claim that it was “supported by over thirty years of clinical research.” So … Continue Reading

NAD Doesn’t Trim Back Humor with a Razor – Important New Ruling on Puffery

We just read one of our favorite NAD decisions ever. And it just so happened to involve one of our favorite recent ad campaigns. We have blogged before about Dollar Shave Club, as a vehicle to talk about Restore Online Shopper’s Confidence Act (“ROSCA”) and a reminder of the legal issues with negative option plans. … Continue Reading

From Bamboo to Rayon: What a Long Strange Trip It Is

Picture by Luan Anh  (CC BY 2.0)Rayon, or Viscose if you’re British or just want to sound British, is typically made from wood pulp or plant fibers, including bamboo.  However, in doing so the fibers are subject to significant processing, including numerous chemicals, thus the Grateful Dead reference in the title.  Nevertheless, in a time when consumers are concerned about the … Continue Reading

Distributors Beware: Don’t Get Caught with Your Hand in the Cookie Jar

The reasonable consumer couldn’t possibly believe that every Danish cookie, must, as a matter of law, be made in Denmark.  Yet, a recent NAD decision may suggest that this reasonable consumer is not as cookie-cutter as one might expect. In today’s global economy, it is common for U.S. distributors to sell products manufactured and packaged … Continue Reading

Is Organic the New Natural?: The Impact of a Court Holding that an “Organic” Claim Is Not Preempted By Federal Law

By now, class action suits over foods using the term “natural” are old news following the age old American story:  class action plaintiff meets product, product assures plaintiff it is all-natural, plaintiff finds something in product that it doesn’t think is natural, lawsuit ensues.   Over the course of the last few years, cases challenging “natural” … Continue Reading

Miller/Coors Sings the Blues over Craft Beer Lawsuit

There has been a trend of late toward “hand-crafted” goods.  Advertisers, as they always do, have responded to this trend through creative marketing and, as they always do, class action lawyers have not been far behind.  The alcohol industry has been a prime target; for example, Tito’s Handmade Vodka was sued recently by a plaintiff … Continue Reading

Marketers and Sellers of Animal Waste Bags May Be in the Doghouse for Biodegradable and Compostable Claims

Earlier this week, the Federal Trade Commission (“FTC”) sent warning letters to 20 manufacturers and marketers of dog waste bags because claims that the bags are “biodegradable,” “compostable,” and other green claims may be deceptive. As we blogged about in last October, the FTC issued warning letters to companies about their claims that their plastic … Continue Reading

Is It Safe To Use Seals to Promote Your Product? NAD Says Foo to FuHu

Everyone loves an award.  It is one thing when a marketer promotes its own product but to be able to back promises with a seal, a certificate, or other third-party recognition of greatness gives extra confidence to consumers that this is a product they can really trust.  There has been much talk recently about dos … Continue Reading

FTC Warns Companies That “Oxodegradable” Claims May Break Down

“Paper or plastic?”  The age-old question, complicated by the creation of biodegradable plastic, has been broken down more.  Many people’s misgivings about using plastic bags were alleviated with the advent of plastic bags that can carry more weight with less guilt.  However, after this week, there is no question that the FTC is serious about … Continue Reading
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