Product Labeling

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While we love our male colleagues, I am delighted that the women partners and associates in our adlaw group easily outnumber them.  It seemed appropriate to close out Women’s History Month by taking a look at issues involving women in advertising (for the FTC’s take on Women’s History Month click here).

Gender equality was clearly absent from early advertising.  One ad from 1912 encouraged men to light a cigarette in front of a suffragette and watch her say “I wish I were a man.” 
Continue Reading Women’s History Month – A Look at Women in Advertising

Chobani
Image by theimpulsivebuy [CC BY-SA 2.0] via flickr
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 the plaintiffs, the yogurt included color additives that allegedly did not qualify as “natural.”  The plaintiffs further argued that Chobani’s use of “evaporated cane juice” is simply code for sugar, and Chobani therefor misled them about the healthiness of its products.  In oral arguments Chobani argued that the term “evaporated cane juice” fully complies with federal regulations and that “sugar” would be an inaccurate term because it indicates a refined sugar, while Chobani’s ingredient is not a refined sugar.  The District Court dismissed the case, holding that plaintiffs had failed to plead sufficiently reliance upon the allegedly misleading terms.  Plaintiffs appealed to the Ninth Circuit.
Continue Reading Ninth Circuit Stays Class Action Food Labeling Lawsuit Until the FDA Completes Review

By V4711 (Own work) [CC BY-SA 3.0], via Wikimedia Commons
By V4711 (Own work) [CC BY-SA 3.0], via Wikimedia Commons
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 that all, or virtually all, of its glue products are American-made. Chemence’s glue products, which include Kwik Frame, Kwik Fix, and Krylex, purport to be “Made in the USA” or “proudly made in the USA.” According to the FTC, these claims are unqualified, and thus deceptive, since a “significant proportion”—approximately 55%—of the chemical components in Chemence’s glues are attributable to imported chemicals essential to the way the glues function.

The FTC also claims that Chemence provided the “means and instrumentalities” for others to deceive consumers through its unqualified Made in USA claims by providing deceptive promotional materials to retailers for use in marketing the glues. The complaint asks the court to issue an order permanently prohibiting Chemence from making deceptive Made in USA claims and seeks other relief, including monetary relief and rescission or reformation of contracts.Continue Reading Working Toward a Cohesive Approach to “Made in USA” Claims

By Boyd Amanda, U.S. Fish and Wildlife Service [Public domain], via Wikimedia Commons
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 to hit the market. Last year, we wrote about the FTC taking action against a plastic lumber marketer and a manufacturer for misleading advertising and marketing that claimed products to be made almost entirely out of recycled plastics. 
Continue Reading FTC Goes Seal Hunting: Issues Warning Letters About Green Seals

By Jason Hollinger (MusselsUploaded by Amada44) [CC BY 2.0], via Wikimedia Commons
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 far all is going swimmingly well. But NAD recommended that the advertiser discontinue its claim that the product was also a “breakthrough secret,” reasoning that nothing that had been studied for that long could be novel or surprising. This is a good reminder of the need to step back and look at the ad in context and not only as a series of isolated claims, lest your claims combined provide a potential oxymoron like a 30 year breakthrough.

‎While NAD upheld many of the challenged efficacy claims, a few other notes are worth adding to make sure you have your sea legs on when it comes to reviewing dietary supplement claims. NAD said the advertiser could promise you “get back what joint pain and inflammation are limiting you from doing because Omega 8 works” but recommended discontinuing the promise that the supplement makes it “easy for you” to do so. NAD found some consumers might read “easy” to mean that the pain relief would come quickly, while some of the studies suggested it took several weeks for significant pain reduction. In a prior case, NAD suggested ads for dietary supplements should not refer to them as being “prescribed,” because a consumer might misconstrue the product as being as effective as a prescription medicine. In this case, NAD ok’d the use of terms like “dose” and “potency,” however finding that without consumer perception evidence, NAD was not prepared to conclude that these words implied something similar. 
Continue Reading NAD Finds Something Fishy With Claims That Contradict

https://www.youtube.com/watch?v=m648v4s5sFc

It’s Summer in the City and the back of my neck, and just about everything else, is getting dirty and gritty.  The FTC, however, just announced two cases reminding advertisers to keep it clean on claims that their products can sanitize.

The FTC sued Angel Sales, Inc. and Zadro Health Solutions, as well as the two companies’ principals, alleging that the companies’ claims that their ultraviolet light devices could kill everything from foot fungus to MRSA were unsubstantiated and therefore deceptive.  The companies settled the FTC’s charges by agreeing to substantial monetary judgments and injunctive relief prohibiting such claims in the future.  In 2011, the FTC settled similar charges against Oreck for its UV vacuum cleaner.Continue Reading FTC Reminds Marketers to Keep It Clean

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. But we really just wanted to share the web ads because they are hilarious. If you have not seen them, stop reading this blog (yes, you read that right) and have a look.

And even if you have seen it before, you need to refresh your memory to put the NAD’s holding in context. (We promise we are in no way affiliated with the Dollar Shave people and get no pay-per-click revenues. We would like to have a beer with these guys, however.).Continue Reading NAD Doesn’t Trim Back Humor with a Razor – Important New Ruling on Puffery

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 environment and their own health, manufacturers and retailers alike are often drawn to evoking the image of lush fields of bamboo and its sustainability and eco-friendly features and thus labeling or advertising textile products as “bamboo,” which, let’s face it, does sound a lot better than rayon.  The difficulty with this is the Textile Fiber Products Identification Act, or Textile Act, for short.  The FTC, which enforces the Act, has established generic names for manufactured fibers that must be used in labeling and advertising.  “Bamboo” definitely is not on the list, while Rayon and Viscose are.  (If you’re a total fiber geek, there is such a thing as a natural bamboo fiber but in the FTC’s view it is rarely if ever used in commercial textiles.)  Just to demonstrate their generous nature, the FTC has said it won’t quibble with terms like “rayon from bamboo,” just so long as the magic word “rayon” appears. 
Continue Reading From Bamboo to Rayon: What a Long Strange Trip It Is

Picture by slgckgc (CC BY 2.0)
Picture by slgckgc (CC BY 2.0)

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 overseas.  A downside of this system, is that neither the distributors nor the sellers can necessarily oversee each advertising claim placed on the product’s packaging.  This practice contradicts a recent NAD decision, which warns that before a seller can distribute an international product throughout the United States, it should be cognizant of any and all claims found on the product’s packaging. 
Continue Reading Distributors Beware: Don’t Get Caught with Your Hand in the Cookie Jar