Category Archives: Advertising

Unsure What “Natural” Means? That’s Natural…

As anyone who has entered a grocery store in recent years has noticed, there has been a proliferation of foods and beverages claiming to be “natural.” This is not surprising, as according to market research, there is a large percentage of Americans who seek out and buy these types of products. Unfortunately, the FDA has not provided a clear statutory definition of what “natural” means. However, despite this regulatory uncertainty, manufacturers, suppliers, marketers, and retailers of such “natural” foods and beverages can glean some guidance…

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Supreme Court’s Juice Decision Could Open the Door to New Litigation

Juice maker POM Wonderful manufactures 100% pomegranate juice and other juice products made primarily from the pomegranate fruit. Since its founding in 2002, the company has reached a growing market of health-conscious consumers who are willing to pay a premium for the claimed health benefits of the pomegranate fruit. In 2008, POM filed a deceptive labeling claim against a competing juice manufacturer arguing that its label, which prominently displayed the words “pomegranate blueberry” despite containing less than half of a percent of these juices, was…

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Deceptive Discounting: Retail Sale Advertisements Under Fire

We see the advertisements all the time – huge signs in retail store windows announcing “40% Off Everything!” or “50% Off Your Purchase!” But we sometimes find out that “Everything” doesn’t always mean everything, and “Your Purchase” doesn’t always mean your entire purchase. Often these advertised great sales are subject to dozens of exclusions – specific items, categories of items, and even entire departments – but we sometimes do not find out about those exclusions until we hit the checkout line. Consumers are starting to…

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FTC Issues Guidelines to Media for Spotting False Weight-Loss Claims

In anticipation of the summer season, the Federal Trade Commission released a reference guide for media outlets to spot and restrict false weight-loss advertising claims. The FTC notes in its guide that weight-loss advertisers often use the reputation of respected media outlets as cover, and that the FTC has prosecuted hundreds of deceptive weight-loss claims. However, in order to prevent false claims from reaching consumers in the first place, the FTC is relying on media outlets to spot and prevent claims before they are aired.…

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Choose Your (Advertisement) Words Wisely: One Company’s Battle with the FTC Over Freedom of Speech in Advertising

Recent FTC target, Pom Wonderful, LLC, is forging ahead in a tough battle with the Federal Trade Commission and Federal Courts over what it claims is an invasion of its freedom of speech in advertising. In 2013, the FTC slammed Pom for advertisements of its pomegranate juice that claimed the juice could benefit people suffering from certain medical conditions and diseases, such as heart disease and prostate cancer. The FTC decided Pom had not performed enough scientific research to back its claims, so it…

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E-Cigarette Manufacturer’s Health Claims Spark New Litigation

With traditional cigarettes becoming increasingly restricted, and the health dangers of smoking now widely known, many Americans are turning to newly popularized electronic smoking alternatives as a source of nicotine. Electronic cigarettes, or e-cigarettes, are devices that emit doses of vaporized nicotine which are inhaled by the user. E-cigarettes are intended to simulate the sensation of smoking, but because there is no actual combustion, users supposedly avoid many of the dangerous chemicals normally associated with tobacco products.  Given that e-cigarettes do not produce actual smoke,…

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FTC Requires Revision of Misleading “Green” Product Ads

Nowadays environmentally conscious purchasing is on the rise, as evidenced by the increased availability of organic food in your supermarket produce section, and the proliferation of hybrid and electric vehicles on our highways. In view of this, manufacturers attempting to get a competitive edge, seek to promote the “green” and eco-friendly characteristics of their products as compared with those of competitors’ products. However, a settlement entered this week by the Federal Trade Commission with one such company’s advertising campaigns regarding its plastic lumber products demonstrates…

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Consumer’s Individual and Proposed Class Action Claims of Mislabeling of Organic Foods Found Preempted by Federal Law by a California Appellate Court

The food industry received welcome news late last month when a California state appellate court in Los Angeles affirmed a trial court finding that a proposed class action against a federally certified, organic food grower could not proceed because the claims were preempted by federal law, specifically the Organic Foods Production Act of 1990 (“OFPA”).  In Quesada v. Herb Thyme Farms, Inc., 222 Cal.App.4th 642 (Cal. App. 2d Dist., 3d Dep’t, Dec. 23, 2013), the plaintiff, Michelle Quesada, sued on her own behalf…

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Arm & Hammer Can’t Rub Off Deodorant False-Ad Claims

The plaintiffs argued that Church & Dwight, the manufacturer of Arm & Hammer’s “natural” deodorant, participated in a false and misleading marketing strategy claiming the product actually contains the synthetic antibacterial agent Triclosan, which is linked to various health risks. The manufacturer filed a motion to dismiss the claim and argued the pleadings were insufficient to support a claim for fraud under Federal Rule of Civil Procedure 9(b). A New Jersey federal court disagreed and is letting the case move forward. Some consumer…

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Third Circuit Deals Blow to Class Certification for Food and Low Cost Merchandise Claims

In what is being viewed as a game-changing decision, the Third Circuit Court of Appeals struck down a false advertising lawsuit on the grounds that there was no reliable way to identify class members absent receipts or sale records. The decision is expected to make it significantly more difficult for consumers to bring class action suits against food and other low-cost products. In Carrera v. Bayer Corp., et al, Case Number 12-2621, the proposed class, which was certified by the District Court of New Jersey,…

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