A coalition of consumer groups led by the Center for Digital Democracy, Campaign for a Commercial-Free Childhood (CCFC) and Center for Science in the Public Interest have filed a complaint with the Federal Trade Commission (FTC), alleging that Google’s YouTube Kids application mixes “advertising and programming in ways that deceive young children, who, unlike adults, lack the cognitive ability to distinguish between the two.” According to the April 7, 2015, press release, the groups also claim that the app promotes several “branded channels” for fast-food and toy companies, as well as “user-generated segments” “that feature toys, candy and other products without disclosing the business relationships that many of the producers of these videos have with the manufacturers of the products, a likely violation of the FTC’s Endorsement Guidelines.” Filed on behalf of these consumer groups by Georgetown Law’s Institute for Public Representation, the complaint asks FTC to investigate whether the…
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The parents of an 11-year-old boy who died in 2013 have filed a wrongful death lawsuit against Quorn Foods, Inc. and several distributors alleging that the mycoprotein in a Quorn® Turk’y Burger caused their son to go into anaphylactic shock, which resulted in his death. Bengco v. Quorn Foods, Inc., No. BC576522 (Cal. Super. Ct., C.D. Los Angeles Cty., filed March 24, 2015). The complaint calls Quorn’s product “highly processed mold,” to which the boy had a severe allergy. According to the complaint, the product label of Quorn’s Turk’y Burger lists “Mycoprotein (47%)” as the first ingredient, and the description explains that “’myco’ is Greek for ‘fungi.’” The description also explains that “[t]here are believed to be over 600,000 varieties of fungi in the world, many of which are among the most sought after foods like varieties of mushrooms, truffles, and morels” but the product is not, the complaint notes, a…
A Florida consumer has filed a proposed class action against Hampton Creek, maker of vegan spread “Just Mayo,” in Florida state court alleging that the product is falsely labeled and advertised because it does not contain eggs. Davis v. Hampton Creek Inc., No. 2015-5993-CA (Fla. 11th Jud. Cir. Ct., filed March 13, 2015). The complaint cites definitions of “just” and “mayo” to argue that the product name fools reasonable consumers into believing that it is mayonnaise despite containing no eggs. The plaintiff further points to the label, which includes an egg-shaped outline, and to the website, which previously advertised the product as “an outrageously delicious mayonnaise that’s better for your body, for your wallet, and for the planet.” She alleges a violation of Florida’s consumer-protection statute and unjust enrichment and seeks class certification, damages, restitution, an injunction, and attorney’s fees. Unilever, producer of Hellmann’s mayonnaise, challenged Hampton Creek’s “Just Mayo”…
The World Health Organization (WHO) has issued an interim report that seeks to identify policy options for mitigating the risk of childhood obesity. Published by WHO’s Commission on Ending Childhood Obesity, the strategy document emphasizes “the importance of a life-course approach to simultaneously address the risk factors for childhood obesity from before conception, through pregnancy and during childhood, as well as the obesogenic environment in which children and adolescents grow and develop.” Among other things, the interim report urges policymakers to “tackle the obesogenic environment” by adopting standardized food labeling schemes and addressing food and beverage marketing to children. “There is unequivocal evidence that unhealthy food and non-alcoholic beverage marketing is related to childhood obesity,” states the commission. “The increasing number of voluntary efforts by industry and communities suggest that the need for change is widely agreed. Any attempt to tackle childhood obesity should, therefore, include a reduction in exposure…
After conducting a systematic review of studies examining the impact of brand mascots and cartoon media characters on children’s diets, Virginia Tech and Duke University researchers have claimed that “familiar media character branding appears to be a more powerful influence on children’s preferences, choices and intake of less healthy foods compared with fruits or vegetables.” V.I. Kraak and M. Story, “Influence of Food Companies’ Brand Mascots and Entertainment Companies’ Cartoon Media Characters on Children’s Diet and Health: A Systematic Review and Research Needs,” Obesity Reviews, February 2015. The results also apparently indicated that “an unfamiliar cartoon media character may increase children’s appetite, preference for, choice and intake of health of fruits and vegetables compared with no character branding.” Adapted from a paper commissioned by the Robert Wood Johnson Foundation’s Health Eating Research program, the review summarized “11 published experimental studies involving children aged 2-11 years” while noting some limitations, including…
Researchers from the Johns Hopkins Bloomberg School of Public Health have authored an overview of litigation and governmental actions related to health claims on food and beverages marketed to children. Lainie Rutkow, et al., “Legal Action Against Health Claims on Foods and Beverages Marketed to Youth,” American Journal of Public Health, March 2015. By identifying 115 instances of legal action—including consumer class actions and governmental warnings—the authors review “lessons learned for policymakers, practitioners, and other stakeholders seeking to limit the untruthful or misleading marketing of foods and beverages to children.” Those looking to challenge health claims “should first determine whether scientific evidence supports the claim,” the researchers said. In addition, plaintiffs should be selected carefully, they recommend, noting that they “may prefer, if possible, to bring a lawsuit in a state such as California, which has a well-developed body of law about deceptive and misleading advertising and marketing.” In addition,…
A consumer has filed a putative class action against Jim Beam Brands Co. and its owner Beam Suntory Import Co. alleging that the label indicating that the bourbon whiskey is “handcrafted” is misleading because the bourbon is produced with machines. Welk v. Beam Suntory Import Co., No. 15-328 (U.S. Dist. Ct., filed February 17, 2015). The complaint asserts that videos, photos and diagrams on Jim Beam’s website show that its bourbon “is manufactured using mechanized and/or automated processes, resembling a modern day assembly line and involving little to no human supervision, assistance or involvement.” The handcrafted claim leads consumers to purchase Jim Beam Bourbon falsely believing it to be of superior quality, so they are willing to pay a premium price, the complaint argues. The plaintiff alleges misrepresentation and violations of California’s False Advertising Law and Unfair Competition Law, and he seeks class certification, an injunction, an order for Jim…
The Fourth Circuit Court of Appeals has affirmed a lower court’s dismissal of a case alleging that Kraft spammed an Internet service provider (ISP) with advertisements for its Gevalia® coffee products. Beyond Systems, Inc. v. Kraft Foods, Inc., No. 13-2137 (4th Cir., order entered February 4, 2015). Beyond Systems sued Kraft alleging violations of Maryland’s and California’s anti-spam statutes, but the circuit court agreed with the district court’s determination that Beyond Systems “invited its own purported injury and thus could not recover for it.” Beyond Systems is a Maryland ISP with servers housed at the residence of the owner’s parents, and the owner’s brother owns Hypertouch, Inc., a similar “nominal” ISP with servers in California. Both ISPs host websites with hidden email addresses that only “spam crawlers” can find, and Beyond Systems uses the email addresses as “spam traps”; the court notes that “spam-trap-based litigation has accounted for 90% of…
A group of consumers has filed a putative class action against Cytosport Inc., maker of Muscle Milk, alleging that its powdered and ready-to-drink protein supplements do not contain the ingredients and characteristics advertised on its packaging. Clay v. Cytosport Inc., 15-165 (S.D. Cal., filed January 23, 2015). The plaintiffs argue that independent scientific testing shows that Muscle Milk products contain substantially less protein than the amount represented in the Nutrition Facts panel. They also allege that Muscle Milk labels list L-glutamine amino acids separately from the protein content to falsely imply that the products have additional L-glutamine beyond the content inherent in the protein mix. The complaint further argues that Muscle Milk labels cannot feature the word “lean” because the product does not contain less fat than its competitors. Alleging deceptive advertising, misrepresentation and breach of warranties, the putative class seeks certification, damages, an injunction, and attorney’s fees. Issue…
A California federal court has dismissed without leave to amend claims that the makers of 5-Hour Energy—Innovation Ventures LLC, Living Essentials LLC, Manoj Bhargava, and Bio Clinical Development Inc.—falsely advertised their product as boosting its users’ energy levels with B-vitamins and amino acids rather than caffeine. In re: 5-Hour Energy Mktg. & Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered January 22, 2015). The plaintiffs argued that the 5-Hour Energy makers downplayed the caffeine content in favor of attributing the product’s energy source to vitamins and other ingredients, and they included descriptions of five commercials containing the allegedly misleading statements. The court found that they failed to show what statements actually misled them, and it was also unpersuaded by the argument that the plaintiffs were exposed to a common message and thus did not need to specify which statements they relied upon to their detriment, so it dismissed without…
