California-based law and policy advocacy organization ChangeLab Solutions has issued a voluminous white paper reviewing legal issues surrounding potential strategies to address the marketing of “unhealthy” foods and beverages purportedly directed to children younger than age 5. The report details various policy considerations with respect to outdoor advertising, broadcast media, digital and print media, childcare settings and schools, government procurement and vending, government property and government sponsorship, land use planning/zoning, retail environments, taxation, and hospital infant-formula giveaways. Issue 571
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Diageo Great Britain Ltd. reportedly plans to appeal the U.K. Advertising Standards Authority’s (ASA’s) decision to ban a Smirnoff ® advertisement for allegedly violating the marketing rules for social responsibility in alcohol marketing. Upholding its own complaint, which claimed that the ad in question linked social success to alcohol consumption, ASA found that “the ad’s presentation implied that before the visitor asked for an alcoholic drink, the bar was cold and uninviting and that once his drink had been ordered, the bar changed and became livelier and more fun.” Diageo disputed this interpretation, arguing that the TV spot showed the bar “tilting” to filter out the elements that gave it an unwelcoming atmosphere. According to the ruling’s summary of Diageo’s response, “The tilt acted as a physical division within the ad and where the pretentious items in the first scene were filtered out and the bar now had a warm…
A consumer has filed a putative class action against Ghirardelli alleging that the company deceptively advertised its white chocolate products as containing chocolate, white chocolate or cocoa butter. Vega-Encarnacion v. Ghirardelli Chocolate Co., No. 15-1821 (D.P.R., filed June 16, 2015). Three of the products at issue in the complaint were the subjects of an October 2014 class action settlement open only to consumers who purchased the product “in the United States,” so the Puerto Rican consumer seeks to represent those similarly situated in U.S. territories. Additional details about the settlement appear in Issue 540 of this Update. The complaint cites the U.S. Food and Drug Administration’s (FDA’s) definitions of “chocolate” and “white chocolate,” which include required levels of cacao-derived products such as cocoa butter. Ghirardelli’s white-chocolate products—baking chips, confectionery coating wafers and ground white chocolate flavor—do not contain any white chocolate as defined by FDA, but merely white-chocolate flavoring, the…
A group of plaintiffs has filed a putative class action against Inko’s Tea alleging that the company’s tea products contain ascorbic acid, “a non-natural, highly chemically processed ingredient regularly used as a preservative,” despite advertising the products as “100% Natural.” Collazo v. Inko’s Tea, LLC, No. 15-3070 (E.D.N.Y., filed June 8, 2015). Inko’s has consistently presented its products as “100% All-Natural,” the complaint asserts, and contains “nothing but pure, freshly brewed tea from tea leaves with no added ingredients or preservatives.” The plaintiffs admit that “natural” has not specifically been defined, but assert “there is no reasonable definition of ‘All Natural’ that includes ingredients that even if sourced from ‘nature,’ are subjected to extensive transformative chemical processing before their inclusion in a product.” The complaint cites 51 statutes—one in each state and the District of Columbia—that the allegedly misleading “All Natural” marketing violates in addition to the federal Food, Drug,…
The European Court of Justice (ECJ) has found that a correct and complete list of ingredients can be part of an overall misleading food label in a case challenging a German tea company’s “Felix Raspberry and Vanilla Adventure” (“Felix Himbeer-Vanille Abenteuer”) product for having no flavorings derived from raspberries or vanilla. Bundesverband der Verbraucherzentralen und Verbraucherverbände v. Teekanne GmbH & Co. KG, No. C-195/14 (E.C.J., order entered June 4, 2015). Teekanne advertises its tea product as fruit tea with natural flavorings and a raspberry-vanilla taste, and the label features depictions of raspberries and vanilla flowers and a seal indicating the product contains only natural ingredients. The ingredient list includes “natural flavouring with a taste of vanilla” and “natural flavouring with a taste of raspberry,” according to the court. “That list thus expresses, in a manner free from doubt, the fact that the flavourings used are not obtained from vanilla and raspberries but…
The San Francisco Board of Supervisors has unanimously passed three proposals aimed at reducing the consumption of sugar-sweetened beverages (SSBs) in the San Francisco Bay Area. The first, legislation introduced by Supervisor Scott Wiener, would mandate warnings on most billboards and advertisements for SSBs with 25 or more calories. Text of the warning would read: “Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” “We know health warnings work,” Wiener was quoted as saying. “They worked with cigarettes and they’ll work here.” The other two proposals would (i) prohibit advertisements for SSBs on city-owned property and (ii) prevent city departments and contractors from using city funds to purchase SSBs. All three pieces of legislation must pass another vote by the board and be approved by the mayor before they are enacted. See The Wall Street Journal…
In a recent journal article, a Babson College marketing law professor discusses legal disputes over the labeling of food as “natural,” noting drawbacks of using courts as public policy developers on the issue. Ross D. Petty, “‘Natural’ Claims in Food Advertising: Policy Implications of Filling the Regulatory Void with Consumer Class Action Lawsuits,” Journal of Public Policy & Marketing, Spring 2015. Petty provides a history of the debate and litigation over use of the terms “natural” and “unprocessed” on food labels, beginning with U.S. Federal Trade Commission (FTC) actions against Sugar in The Raw® and Hawaiian Punch® in the 1970s. The article also details efforts by the U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) to define “natural,” “synthetic,” “healthy” and “good source.” Petty highlights industry self-regulation, such as the processes established by the National Advertising Division of the Council of Better Business Bureaus, as a venue for…
A study funded by the Robert Wood Johnson Foundation’s Healthy Eating Research Program claims that a decrease in TV food advertisements directed to children is “likely related to a shift in marketing tactics” as advertisers “migrate to new media such as Internet-based advergames and social media.” Dale Kunkel, et al., “Evaluating Industry Self-Regulation of Food Marketing to Children,” American Journal of Preventative Medicine, May 2015. After conducting a “systemic content analysis of food advertisements appearing in children’s TV programs on the most popular cable and broadcast channels,” the researchers report a decline of 25 percent in the rate at which food ads appeared during children’s programming. They also note a decrease in the use of licensed characters among signatories of the Children’s Food and Beverage Advertising Initiative. The study opines, however, that the foods and beverages advertised to children still fail to meet stringent nutritional standards. “The lack of significant improvement in…
A New York federal court has reportedly approved an agreement between Red Bull GmbH and a class of consumers, settling allegations that Red Bull falsely advertised its product as providing more benefit than coffee provides. Careathers v. Red Bull N. Am. Inc., No. 13-0369 (S.D.N.Y., order entered May 1, 2015); Wolf v. Red Bull GmbH, No. 13-8008 (S.D.N.Y., order entered May 1, 2015). The agreement allots $13 million to the 2 million claimants, of whom 60 percent will each receive $4.23 and 40 percent will each receive a four-pack of Red Bull energy drinks. The court cut the fees for plaintiffs’ counsel down to about $3.4 million, or about $1.4 million less than they requested; the attorney’s fees and class award were not linked, and the court apparently indicated that it would have preferred to lower the attorney’s fees amount to increase the total consumer amount to accommodate the large…
The U.K. Advertising Standard Authority (ASA) has dismissed a complaint alleging that a message on Diageo Great Britain Ltd.’s Guinness® Twitter feed “implied that someone’s week would be improved by drinking alcohol.” Filed by Alcohol Concern, the complaint dubbed a tweet appearing on @GuinnessGB “irresponsible” for featuring a photograph of the iconic brewery’s gates with the caption, “a good week starts here.” Dismissing the challenge, ASA ultimately agreed with Diageo Great Britain that consumers would recognize the gates as belonging to St. James Brewery in Dublin and would not confuse the brewery with a bar or other social venue where alcohol was consumed. According to Diageo Great Britain, the followers of @GuinnessGB would also understand the tweet as part of a larger ad campaign highlighting individual workers at the brewery. “We also noted that the photo was tweeted on Monday,” states ASA. “In this context, we considered that the ad…
