The most recent issue of the Minnesota Journal of Law, Science & Technology includes an article titled “Food Advertising and Childhood Obesity: A Call to Action for Proactive Solutions.” Co-authored by online law instructor Roseann Termini and Widener University School of Law students Thomas Roberto and Shelby Hostetter, the article explores whether food advertising is related to the epidemic of child obesity and what can be done to reduce its purported effects. Contending that government regulation of food advertisements directed at children is necessary because “children lack the cognitive skills to discern actual nutritional information amidst a veil of attention grabbing marketing techniques,” the authors discuss what regulatory options would best police the industry. While they note the constitutional issues raised by bans or limitations on commercial advertising, the authors apparently see no impediments to government overseeing and enforcing “the internal policies of food manufacturers,” aggressive enforcement of established youth…
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A federal court in California has denied the defendant’s motion to dismiss the plaintiffs’ first amended consolidated complaint in a case involving claims that “Ferrero misleadingly promotes Nutella® spread as healthy and beneficial to children when in fact it contains dangerous levels of fat and sugar.” In re: Ferrero Litig., No. 11-205 (S.D. Cal., decided August 29, 2011). According to the court, the plaintiffs sufficiently pleaded exposure to a long-term advertising campaign and reliance on the campaign in making their purchasing decisions to confer standing on them to bring their claims under California’s Unfair Competition Law, False Advertising Law and Consumers Legal Remedies Act.
A federal court in California has granted in part the motion to dismiss filed by Arizona Beverages USA LLC, in a putative class action alleging the violation of consumer fraud and false advertising laws due to company representations that its products are “Natural,” “All Natural” and “100% Natural.” Ries v. Arizona Beverages USA LLC, No. 10-01139 (N.D. Cal., decided August 25, 2011). The plaintiffs contend that the products are not natural in that they contain high-fructose corn syrup and an artificially produced citric acid. At issue in the defendants’ motion was whether the plaintiffs had adequately pleaded the claims in their first amended complaint under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). According to the court, the complaint adequately pleaded fraud in connection with the plaintiffs’ allegations arising out of the product labels. The court concluded, “These allegations are not inherently implausible and are sufficient for purposes of Rule 9(b).” The…
Sara Lee Corp., which makes Ball Park® franks, and Kraft Foods, Inc., which makes Oscar Mayer® hot dogs, have reportedly brought their marketing dispute to a Chicago courtroom where trial recently began on claims each company brought against the other over ad campaigns that sought to distinguish their brands. Stating “let the wiener wars begin,” U.S. District Judge Morton Denlow apparently opened the bench trial on August 15, 2011. Sara Lee takes issue with Kraft claims that its hot dogs beat Sara Lee’s in a national taste test and that its hot dogs are “100 percent pure beef.” According to Sara Lee, the taste test was flawed because the products were not served with condiments or buns, and hot dogs containing filler and chemicals cannot be called 100 percent pure. Kraft defends its testing and asserts that consumers understand that “pure beef” means that the products do not contain other…
The Judicial Panel on Multidistrict Litigation (JPML) has denied a request to transfer three actions pending in two federal district courts alleging that Ferrero U.S.A., Inc. misrepresented its Nutella® spread as a healthy and nutritious food. In re: Nutella Mktg. & Sales Practices Litig., MDL No. 2248 (JPML, decided August 16, 2011). While the parties agreed to centralize the cases for purposes of conducting pre-trial proceedings, they could not agree on whether California or New Jersey would be the appropriate transferee court. Denying the request to transfer, the JPML stated, “The actions may share some factual questions regarding the common defendant’s marketing practices, but these questions do not appear complicated. Indeed, the parties have not convinced us that any common factual questions are sufficiently complex or numerous to justify Section 1407 transfer at this time.” The JPML opined that “[c]ooperation among the parties and deference among the courts should minimize…
The Federal Trade Commission (FTC) has issued a staff advisory opinion informing the Council of Better Business Bureaus, Inc. (CBBB) that staff does not have any “present intention” to recommend that FTC bring an enforcement action against a CBBB plan to hold companies “engaged in online behavioral advertising” (OBA) accountable for compliance with self-regulatory principles issued in July 2009 and administered by the Digital Advertising Alliance (DAA). CBBB sought FTC staff’s assurance that the accountability program, if implemented, would not be subject to restraint of trade prosecution. According to the August 15, 2011, letter, “the proposed accountability program is intended to increase transparency and consumer control of OBA, which has the potential to increase consumer welfare, and there appears to be little or no potential for competitive harm associated with the proposed accountability program.” The principles require companies that engage in OBA to notify consumers they are doing so and…
The Consumer Federation of America will hold its 34th Annual National Food Policy Conference on October 3-4, 2011, in Washington, D.C. Topics will include imported food safety, federal legislative priorities, food marketing and social media, and the global food system.
Seeking either clarification or dismissal of claims alleging that it has violated state law by republishing the product or service preferences (“Likes”) of children younger than age 18 as accompaniments to paid advertisements without first obtaining parental consent, Facebook, Inc. argues that the claims are insufficiently pleaded, fail to state a claim or are preempted by federal law. Dawes ex rel. E.K.D. v. Facebook, Inc., No. 11-00461 (S.D. Ill., motion filed August 1, 2011). Facebook explains that the plaintiffs are teenagers who shared their Internet “Likes” with their friends and that Facebook may then redisplay the preference to the same friends along with an advertisement for the relevant company’s website. According to Facebook, the plaintiffs have failed to indicate how they have been injured because they failed to allege “that their personal information had any ascertainable ‘value’ or any facts supporting the claimed ‘lessening’ of that value.” Facebook also contends…
The National Advertising Division (NAD) of the Council of Better Business Bureaus and the Children’s Advertising Review Unit (CARU) have announced the agendas for their joint 2011 annual conferences slated for October 3-5, 2011, in New York. The two-day NAD conference, “What’s New in Advertising Law, Claim Support and Self-Regulation,” will include keynote remarks by David Vladeck, director of the Federal Trade Commission’s (FTC’s) Bureau of Consumer Protection, as well as sessions on online behavioral advertising, claim substantiation, mobile marketing, litigation and FTC enforcement priorities, and the future of advertising self-regulation. Immediately following the NAD session, CARU will host a one-day conference focused on privacy and digital issues in youth marketing, with expert panels dedicated to new FTC regulations, multimedia and social media advertising to children, and responsible food marketing to children.
The 17 companies comprising the Children’s Food and Beverage Advertising Initiative (CFBAI) have reportedly agreed to abide by new uniform nutrition criteria as part of a voluntary effort to encourage healthier dietary choices among children. Under the new rules, CFBAI signatories have pledged not to market the following products to children: (i) juices with added sugars and more than 160 calories per serving, (ii) ready-to-drink flavored milks containing more than 24 grams of total sugars per 8 fluid ounces, and yogurt containing more than 170 calories and 23 g of total sugars per 6 ounces; (iii) seeds, nuts, nut butters, and spreads with more than 220 calories, 3.5 g of saturated fat, 240 milligrams of sodium, and 4 g of sugar per 2 tablespoons; and (iv) main dishes and entrees with more than 350 calories, 10 percent calories from saturated fat, 600 mg of sodium, and 15 g of sugar…
