Product Labeling

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pate In “The War of the Roses” Kathleen Turner delivered the most dramatic “woof” in movie history when her character implied that the pate she just served was made from the family dog. While dramatic and intentional, rarely, if ever, should any company take a line from this movie and intentionally imply anything about its warranty claims. Indeed, the opposite is most often true; companies should strive to be clear and express about what is and is not covered in a warranty. This is particularly so where determined and creative consumers try to find implied warranties despite the company’s best efforts to be clear and precise in drafting the warranty. Too frequently plaintiffs succeed in finding implied warranties.

For example, a review of recent cases filed in California shows that plaintiffs look to the overall purchasing experience and statements made about the products purchased to try to find an implied warranty.
Continue Reading The Importance of Coordination in Avoiding Implied Warranty Claims

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” and “all-natural” claims have proliferated in the absence of a clear federal definition of natural, while cases involving “organic” claims have remained rare in light of detailed federal laws and regulations laying out a standard and a certification process for products labeled as organic.   On May 7th, the United States District Court for the Southern District of New York (S.D.N.Y.) issued a ruling on a motion to dismiss in Segedie v. Hain Celestial Grp., Inc., allowing a consumer class action alleging false and misleading “organic” claims to move forward, finding that these claims under state consumer protection laws were not preempted by federal organic laws and regulations.  
Continue Reading Is Organic the New Natural?: The Impact of a Court Holding that an “Organic” Claim Is Not Preempted By Federal Law

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 was biodegradable or “oxodegradable.”  The warning letters involved advertising that products were “biodegradable” when in fact, they would not degrade under normal conditions of disposal in landfills within a “reasonably short period of time,” as required under the Green Guides.  The most recent revisions of the Green Guides had warned that unqualified “biodegradable” claims were deceptive if the items customarily disposed of in landfills would not decompose within one year in such an environment.Continue Reading Marketers and Sellers of Animal Waste Bags May Be in the Doghouse for Biodegradable and Compostable Claims

sealEveryone 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 and don’ts with use of seals.  ‎The FTC has brought multiple cases when companies offering seals allegedly fail to research and properly certify the companies it does business with to ensure compliance with the articulated award standards, including in cases involving green seals and Made in USA.  Last week we wrote about a similar case involving the TRUSTe COPPA safe harbor seal. NAD recently examined use of seals from a different angle, considering whether by use of a seal a marketer was conveying an overly broad promise about its product. The case reminds us of principles the FTC articulated in its Green Guides that a marketer is responsible to define and explain what a seal means to its consumers unless it is patently clear from the seal itself. Like many things we advertising lawyers do, this is often easier said than done!
Continue Reading Is It Safe To Use Seals to Promote Your Product? NAD Says Foo to FuHu

“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…

We are close to live blogging from the annual NAD Advertising Law Conference and for those who could not join us, we wanted to share highlights from its opening — keynote speaker FTC Chairwoman Edith Ramirez.  The FTC typically uses this conference to lay out its enforcement priorities relevant to national advertisers and gives us all a peek into the crystal ball for the coming year.  So here’s what we heard.
Continue Reading Live (almost) from New York, It’s the NAD Annual Conference

It is almost football season and the FTC tries to stay seasonal; around this time in 2012, it announced a settlement with football mouthguard manufacturer Brain-Pad regarding unsubstantiated concussion prevention claims.  Subsequently, the FTC has sent warning letters to other manufacturers of sporting equipment regarding concussion prevention claims.  This year, however, the FTC has called a different play.  On August 21, the FTC announced that it had sent warning letters to five major retailers regarding the FTC’s concerns regarding concussion protection claims for athletic mouthguards made on the retailers’ websites.  These retailers appear to have been repeating claims that the manufacturers of the products made on their packaging. 
Continue Reading FTC’s Letters to Retailers Regarding Concussion-Related Products Has Us Scratching Our Heads