A federal court in Florida has denied the Federal Trade Commission’s (FTC’s) request that it modify a stipulated final order resolving a 2006 dispute with Garden of Life, Inc. over purportedly unsubstantiated representations that its products could treat a range of serious diseases and their symptoms. FTC v. Garden of Life, Inc., No. 06-80226 (S.D. Fla., filed May 25, 2012). The parties had agreed that the company could make such claims if supported by “competent and reliable scientific evidence,” defined in the stipulated final order as “tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that has been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results.” Claiming that the company was continuing to deceive consumers and that “the Stipulated Final Order has failed to…
Category Archives Federal Trade Commission
An administrative law judge (ALJ) has upheld some of the Federal Trade Commission’s (FTC’s) allegations that POM Wonderful violated federal law by making deceptive claims in some advertisements that the company’s pomegranate juice and related products treat, prevent, or reduce the risk of heart disease, prostate cancer and erectile dysfunction. In re: POM Wonderful LLC, No. 9344 (FTC, decided May 17, 2012). The ALJ’s initial decision is deemed the decision of the FTC 30 days after it is served on the parties, unless appealed or placed on FTC’s docket on its own motion. According to the ALJ, some, but not all, of POM’s ads could be interpreted as containing an “implied claim” that the company’s products treat, prevent or reduce the risk of some diseases and that “these effects were clinically proven.” The ALJ also determined that (i) “the appropriate level of substantiation for claims that a product treats, prevents,…
The Public Health Advocacy Institute (PHAI) and several other organizations have asked the Federal Trade Commission (FTC) to “investigate PepsiCo’s current ‘Win from Within’ commercial television advertisement and commercial website for its Gatorade sports drink product featuring Michael Jordan’s performance during game 5 of the 1997 NBA Finals.” According to the letter, joined by groups such as the California Center for Public Health Advocacy, Center for Science in the Public Interest and Yale Rudd Center for Food Policy & Obesity, the ad “encourages teens to engage in dangerous behavior; sequences historical events to falsely enhance the role of Gatorade in Mr. Jordan’s game-winning athletic performance; and contains deceptive product imagery.” The letter claims that the ad targets teens by airing on cable networks appealing to teens, such as “Adult Swim, Teen Nick, ABC Family, and MTV.” The organizations claim that the ad promotes vigorous physical activity during illness, including a…
The Humane Society of the United States (HSUS) has reportedly filed a legal complaint with the Federal Trade Commission (FTC) alleging that the National Pork Producers Council (NPPC) “is engaging in deceptive advertising related to animal well-being in violation of the Federal Trade Commission Act,” according to an April 18, 2012, press release. In particular, the complaint apparently maintains that NPPC’s “We Care Initiative” and “Pork Quality Assurance [PQA] Plus” program “are riddled with numerous false claims regarding the welfare of pigs, including the trade group’s patently false claim that its PQA Plus program helps to ‘ensure that all animals in the pork industry continue to receive humane care and handling.’” In support of these assertions, HSUS claims to have documented pork industry practices “that most consumers do not consider humane such as the extreme confinement of breeding sows in two-foot-wide metal cages, and painful procedures such as tail ‘docking,’…
The Federal Trade Commission (FTC) has released a report recommending best business practices “to protect the privacy of American consumers and give them greater control over the collection and use of their personal data.” Titled “Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers,” the guidance reportedly expands on preliminary findings first issued in December 2010 and covered in Issue 374 of this Update. In particular, the March 2012 report urges companies to protect consumer privacy by (i) building protections into every stage of product design, including “reasonable security for consumer data, limited collection and retention of such data, and reasonable procedures to promote data accuracy”; (ii) giving consumers a “Do Not Track” mechanism to opt out of data collection; and (iii) providing greater transparency about the collection and use of consumer information. Unlike the preliminary version, which applied its framework to all businesses, the…
The attorneys general of a number of states have submitted a comment to the Federal Trade Commission (FTC) taking issue with several aspects of a proposed settlement agreement with the company that makes the caffeinated alcoholic beverage Four Loko®. Additional information about the proposed settlement appears in Issue 412 of this Update. Attached to the November 16, 2011, letter are numerous Facebook comments by individuals who apparently “like” various Four Loko® photos, press announcements and news items. The AGs express their concern that FTC will allow Phusion “to market as much as 2.5 servings of alcohol (1.5 oz of ethanol) as if it were one serving and avoid the Order’s requirements for label disclosure and resealability, and its prohibition against depicting consumption directly from the can. By condoning the marketing of ‘single serving’ FMBs [flavored malt beverages] with 2.5 servings of alcohol, the Order would undermine federal guidelines for moderate…
U.S. Representatives Edward Markey (D-Mass.) and Barney Frank (D-Mass.) have reportedly asked the Federal Trade Commission (FTC) to investigate claims that seafood sold in grocery stores, restaurants and markets is often mislabeled. According to the congressmen’s October 31, 2011, letter, two separate investigative reports used DNA testing to conclude that purveyors frequently sold seafood as more expensive or different varieties. In particular, The Boston Globe reported that 48 percent of fish sampled in the area were sold under the wrong name, while Consumer Reports estimated that more than one-fifth of the 190 pieces of seafood it tested in Connecticut, New Jersey and New York were “mislabeled as a different species of fish, incompletely labeled, or misidentified by employees.” The latter report also noted that all 10 of the “lemon soles” and 12 of the 22 “red snappers” purchased were not the species advertised. “Only four of the 14 types of fish…
Several consumer advocacy organizations have filed a complaint with the Federal Trade Commission (FTC) based on a report that “identifies, analyzes, and documents a set of digital marketing practices that pose particular threats to children and youth, especially when used to promote foods that are high in fat, sugars, and salt, which are known to contribute to child and adolescent obesity.” The complaint specifically targets PepsiCo and Frito-Lay, focusing on promotions for Doritos®. According to the complainants, “Frito-Lay has infiltrated the lives of teens by developing covert advertising campaigns centered on things teens love—video games, music, horror, sports, contests, and social networking.” They further contend that (i) “Frito-Lay disguises its marketing campaigns as entertaining video games, concerts, and other immersive forms of entertainment, thus making it more difficult for teens to recognize them as marketing and to be skeptical about the messages they present”; (ii) “Frito-Lay claims to protect teens’…
The Federal Trade Commission (FTC) has entered a 20-year consent order with Phusion Projects, LLC, the maker of Four Loko®, an alcoholic beverage that has generated significant controversy for its “super-size” container and previous inclusion of caffeine, which some allege has led to binge-drinking and adverse health effects. In re: Phusion Projects, LLC, No. 112-3084 (FTC). According to an FTC news release, “The marketers of Four Loko have agreed to re-label and repackage the supersized, high-alcohol, fruit-flavored, carbonated malt beverage, to resolve Federal Trade Commission charges of deceptive advertising.” FTC alleged that the company’s advertisements, packaging and promotional material misrepresented the amount of alcohol in its products and, in fact, implied that a 23.5-ounce can of the beverage contains the alcohol equivalent of just one or two regular 12-ounce beers. The product actually contains alcohol equivalent to 4.7 regular beers, according to FTC. “As a result, consuming a single can…
U.S. Representatives Joe Barton (R-Texas) and Edward Markey (D-Mass.) have written a September 26, 2011, letter to Federal Trade Commission (FTC) Chair Jon Leibowitz, expressing concern over the practices used by some web services to track online behavior. The congressmen, who co-chair the Bi-Partisan Privacy Caucus, cited an August 18 Wall Street Journal article that raised questions about “supercookies,” files installed on computers which apparently allow websites “to collect detailed personal data about users” and which persist “even when consumers choose to delete regular cookies.” Believing that such practices should be banned, Barton and Markey call on FTC “to investigate the usage and impact of supercookies on the Internet and consumers.” “We believe that an investigation of the usage of supercookies would fall within the FTC’s mandate as stipulated in Section 5 of the Federal Trade Commission Act with respect to protecting Americans from ‘unfair and deceptive acts or practices,’” wrote…
