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,…
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The European Commission has approved a list of 222 health claims—“for example on the role of calcium and bone health or vitamin C and the immune system”—that are permitted for use on food labeling and advertising. According to a May 16, 2012, press release, food manufacturers must adapt their practices to the new requirements by the beginning of December 2012, at which point “all claims that are not authorized and not on hold/under consideration shall be prohibited.” “Today’s decision is the culmination of years of work and marks a major milestone in regulating health claims on food,” said Health and Consumer Policy Commissioner John Dalli. “The EU-wide list of permitted health claims will be available on-line and will allow consumers everywhere in the EU to make an informed choice. Non-scientifically backed claims will have to be removed from the market after a short transition period.”
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 Johns Hopkins Bloomberg School of Public Health’s Center on Alcohol Marketing and Youth (CAMY) has issued a May 1, 2012, report claiming that the majority of states have failed to adequately address youth exposure to alcohol advertising. According to a concurrent press release, CAMY researchers apparently reviewed state advertising laws to determine whether each law incorporated all, some or none of eight “best practices” designed to limit alcohol advertising that is likely to be viewed by children and underage youth. Their results purportedly revealed that no state successfully applied more than five of the eight recommended policies and only 11 states used more than one. In particular, CAMY has urged states looking to reduce youth exposure to alcohol marketing to (i) “prohibit false or misleading advertising;” (ii) “prohibit alcohol advertising that targets minors”; (iii) “establish jurisdiction over in-state electronic media (TV and radio)”; (iv) “restrict outdoor alcohol advertising in…
California resident Tricia Ogden has filed a putative class action in federal court against Bumble Bee Foods, LLC, alleging that it misbrands its seafood products by claiming they “are an excellent and affordable source of protein, nutrients and Omega 3 fatty acids” and “Rich in Natural Omega-3.” Ogden v. Bumble Bee Foods, LLC, No. 12-01828 (N.D. Cal., filed April 12, 2012). The only injury apparently alleged is economic, i.e., “Plaintiff would have foregone purchasing Defendant’s products and bought other products readily available at a lower price,” and “Plaintiff would not have purchased Defendant’s Misbranded Food Products had he [sic] known they were not capable of being legally held or sold.” According to the complaint, such representations and labeling establish that the company’s products are drugs under federal law “because they are intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease” and are sold without prior Food and…
A federal court in California has granted in part and denied in part the defendant’s motion to dismiss claims that its product labels, ads and Website representations for Muscle Milk® ready-to-drink beverages and snack bars violate state unfair competition and false advertising laws and the California Consumers Legal Remedies Act, and constitute fraud, negligent misrepresentation and unjust enrichment. Delacruz v. Cytosport, Inc., No. 11-3532 (N.D. Cal., decided April 11, 2012). While the court determined that the plaintiff has standing to pursue the putative class claims and that the claims are not preempted by federal law nor should be stayed under the primary jurisdiction doctrine, it found many of her claims insufficiently pleaded. According to the court, the only claim that survives the motion to dismiss alleges that the term “healthy fats” on the 14-ounce Muscle Milk® ready-to-drink label could constitute deceptive product labeling, because “[a] reasonable consumer would be likely…
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 U.K. Advertising Standards Authority (ASA) has upheld a complaint alleging that a radio advertisement for Budweiser® beer violated rule 19.6 of the Broadcast Committee of Advertising Practice code by linking the consumption of alcohol to sexual success. According to ASA, the ad produced by AB InBev UK Ltd. featured a male speaker modeled after “the typical American football coach” giving “a motivational style speech” to other male characters preparing for the evening ahead, which would likely include meeting new people. Although InBev argued that the commercial did not explicitly link consumption of its product to sexual prowess but instead “drew upon the commonly attributed American values of optimism, free-spiritedness and a positive attitude,” ASA interpreted the message as implying that “on such nights [] unexpected and significant events, including conception, could take place.” “We considered the ad was likely to be understood as suggesting the group was preparing for…
A California superior court has dismissed with prejudice putative class claims filed against McDonald’s Corp. seeking to enjoin the company from advertising Happy Meals® to children featuring toys. Parham v. McDonald’s Corp., No. 10-506178 (Cal. Super. Ct., San Francisco Cty., decided April 4, 2012). Additional information about the case appears in Issues 375, 391 and 420 of this Update. While the court did not explain why it sustained the company’s demurrers to the plaintiff’s first, second and third causes of action, it did so without giving the plaintiff leave to amend her complaint. According to the Center for Science in the Public Interest (CSPI), which was representing the plaintiff, consideration is being given to filing an appeal. In its memorandum of law in support of its demurrers, the company argued that the plaintiff failed to state a claim for relief under the state’s Unfair Competition Law, Consumers Legal Remedies Act…
The Broadcasting Authority of Ireland (BAI) has announced a public consultation regarding draft commercial codes that would prohibit the advertising of foods high in fat, sugar and salt (HFSS) during TV programs where more than 50 percent of viewers are younger than age 18. According to a March 30, 2012, BAI press release, the consultation considers new drafts of the General Commercial Communications Code and Children’s Commercial Communications Code, the latter of which currently makes commercials, sponsorships and other product placements “of particular interest to children, or those broadcast during children’s program[s],… responsible in their messaging and portrayal of food and drink to those aged under 18.” Drafted after receiving more than 226 submissions from a previous consultation, the proposed codes would specifically regulate advertisements for HFSS products as well as adopt a “nutrient profiling model” “to assess the nutritional profile of food and non-alcoholic drink.” In particular, the draft…
