A California resident has filed putative class claims against the Kellogg Co., alleging that it falsely advertises its Cocoa Krispies® cereal as a boost to children’s immunity. Kammula v. Kellogg Co., No. 09-08102 (C.D. Cal., filed November 5, 2009). According to the complaint, without the support of any “known clinical study,” Kellogg claims that the cereal “has been improved to include antioxidants and nutrients that your family needs to help them stay healthy.” The plaintiff alleges that this practice was intended “to profit from a growing trend in the manufacturing, advertising, and sales of ‘functional’ foods.” The complaint also alleges that “Defendants fail to adequately disclose that other ingredients, including but not limited to sugar, chocolate, high-fructose corn syrup and/or partially-hydrogenated oils, may not ‘help support’ a child’s immunity.” The named plaintiff seeks to certify a class of California residents who purchased Cocoa Krispies® since November 4, 2005, alleging false…
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San Francisco’s city attorney has written to the Kellogg Co. to express “serious concerns about Kellogg’s advertising of sugary children’s breakfast cereals with the claims, ‘Now Helps Support Your Child’s Immunity’ on the front of the package.” The company is apparently promoting its Cocoa Krispies® cereal with this claim. The letter contends that “[t]he Immunity Claims may also mislead parents into believing that serving this sugary cereal will actually boost their child’s immunity, leaving parents less likely to take more productive steps to protect their children’s health.” City Attorney Dennis Herrera also states, “At a time when parents are increasingly worried about the spread of the H1N1 virus (‘swine flu’), it is vitally important that parents receive accurate information about what they can do to protect their children’s health.” He suggests that the company may be violating California’s Unfair Competition Law and that it may be undermining “critical public health efforts…
The U.K.’s Advertising Standards Authority has reportedly banned an advertising campaign launched by People for the Ethical Treatment of Animals (PETA), fearing that it would cause some readers to infer that eating meat causes swine flu. The ad stated in bold letters “Meat Kills: Go Vegetarian” and contained repeating background lines of text that said, “E. Coli, Mad Cow, Swine Flu, MRSA.” The “Swine Flu” font was highlighted and made the disease more prominent. The advertising authority apparently determined that the ad was spreading “undue fear and distress” about swine flu. Other PETA ads have also reportedly caused controversy in Great Britain. See MarketingWeek.co.uk, October 14, 2009.
The Federal Trade Commission (FTC) has updated its guidelines on product endorsements and testimonials to include those who use social media, such as blogs, Facebook® and Twitter®, to promote products in exchange for payment or free products. The guidelines, effective December 1, 2009, could result in penalties of $11,000 if violated and will require disclosures of commercial relationships. Even individuals submitting reviews to online stores, such as Amazon.com, will be covered by the new guidelines. Under another change to the guidelines, advertisers will no longer be able to use the safe-harbor disclaimer, “Results not typical,” but will instead be required to “clearly disclose the results that consumers can generally expect,” if they make a claim about consumer experience with a product or service as typical when this is not the case. According to FTC, “The Guides are administrative interpretations of the law intended to help advertisers comply with the Federal…
A California man who alleges that he was misled by the packaging and advertising for Cap’n Crunch with Cruncherries® has brought a putative class action against the cereal maker in federal district court. Werbel v. Pepsico, Inc., No. 09-4456 (N.D. Cal., filed September 22, 2009). Alleging violations of California’s unfair competition and false advertising laws, intentional misrepresentation, breach of express and implied warranties, and violations of the Consumers Legal Remedies Act, the plaintiff claims that he and a class of California consumers were misled by representations that the product contained fruit. Yet, according to the complaint, “the only fruit content is a touch of strawberry fruit concentrate—twelfth in order on the ingredient list, just after partially hydrogenated soybean oil and ‘natural and artificial flavors,’ and just before malic acid.” According to the complaint, the plaintiff “trusted the Quaker label because of the company’s long history of producing other wholesome breakfast…
Without admitting liability for alleged misleading advertising involving its probiotic yogurt products, The Dannon Co. has agreed to settle claims in seven putative class actions for $35 million. Gemelas v. The Dannon Co., Inc., No. 08-00236 (N.D. Ohio, stipulation of settlement filed September 18, 2009). If approved by the court, the settlement would also require the company to modify the advertising and labeling for its Activia® and DanActive® products to explain how they “regulate the digestive system” and to modify promotional statements about the products’ effects on the digestive tract’s immune system. Under the proposed settlement, class claimants can obtain $15 by submitting a claim form, $15-$30 by submitting a claim form signed under penalty of perjury, and $30-$100 by submitting a claim form signed under penalty of perjury and register receipts or other sufficient proofs of purchase. The amount ultimately paid to claimants will depend on the number of…
The Federal Trade Commission (FTC) plans to conduct a study of food marketing to children and adolescents for a follow-up report to its 2008 study titled “Marketing Food to Children and Adolescents: A Review of Industry Expenditures, Activities, and Self-Regulation.” FTC seeks public comments by November 23, 2009, on proposed information requests to approximately 45 major food and beverage companies and quick-service restaurants about their marketing activities, expenditures and nutritional information concerning food and beverage products marketed to children and adolescents. FTC plans to evaluate possible changes in the nutritional content and variety of youth-marketed foods, and “proposes to seek scientific and market research exploring psychological and other factors that may contribute to food advertising appeal among youth.” See Federal Register, September 21, 2009.
The Food and Drug Administration (FDA) has announced a public hearing for November 12-13, 2009, to discuss issues related to ways the internet and social media tools are used to promote FDA-regulated medical products, including prescription drugs for humans and animals. Comments from “consumers, patients, caregivers, health care professionals, patient groups, internet vendors, advertising agencies, and the regulated industry” are requested by October 9, 2009. FDA is “particularly interested in hearing views from the public as to how expanding Web 2.0 technologies may be used to promote medical products to both health care professionals and consumers in a truthful, non-misleading, and balanced manner.” Emerging internet technologies such as blogs, microblogs, podcasts, social networks and online communities, video sharing, widgets, and wikis have prompted questions from regulated companies and other interested parties regarding advertising and labeling provisions, regulations and promotion policies. See Federal Register, September 21, 2009.
A federal court in California has denied the motion to dismiss filed by Ocean Spray Cranberries, Inc. in litigation filed by Pom Wonderful LLC alleging that the company’s false advertising for a cranberry-pomegranate juice violates federal and state law and constitutes unfair competition. Pom Wonderful LLC v. Ocean Spray Cranberries, Inc., No. 09-00565 (C.D. Cal., decided July 16, 2009). Pom Wonderful alleges that Ocean Spray’s product contains little pomegranate juice, costs less to produce and thus unfairly competes with its own and other competitors’ pomegranate juices. The complaint also contends that marketing the Ocean Spray product as high in antioxidants misrepresents the product because “in fact the Beverage does not contain high levels of antioxidants.” The court rejected Ocean Spray’s assertions that (i) the false advertising claims brought under the Lanham Act are precluded or barred by the Federal Food, Drug, and Cosmetic Act and Food and Drug Administration (FDA) regulations;…
A new report from the independent research organization Fraser Institute claims that Canada’s rigid advertising standards leave consumers in the dark about the potential health benefits of certain food products. “Canadian consumers are being denied,” Brett Skinner, the Fraser Institute’s director of bio-pharma and health policy, was quoted as saying. “They don’t know about the potential health benefits of many food products because information can’t be printed on labels.” The Consumers’ Association of Canada responded to the report by asserting that Canadians are well-served by the current system. “There’s no reason we should follow American standards,” an association representative said. “Some American consumer groups aren’t even happy with the amount of claims made on labels for foods.” See Fraser Institute Press Release; Canwest News Service, July 20, 2009.
