A Burger King advertisement featuring a prompt for Google Home, a voice-powered digital-assistant device, has caught media attention as an interesting but flawed method of incorporating artificial intelligence into a food-marketing campaign. The 15-second ad features a Burger King employee noting the ad is too short to explain the ingredients, stating Google Home's trigger, "OK, Google," and asking, "What is the Whopper burger?" When triggered, Google Home recites the answer from Wikipedia, which functioned as expected when viewers first saw the spot. As the ad caught attention, however, pranksters began editing the Wikipedia page, removing the actual ingredients and replacing them with "toenail clippings," "cyanide" and "medium-sized child," among others. Further, Burger King did not collaborate on the project with Google, which quickly disabled Google Home devices' responses to the ad. See New York Times, NPR, and Reuters, April 12, 2017. Issue 631
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Three plaintiffs have filed a putative class action against Dr Pepper Snapple Group, Inc., claiming that although the label on the company’s Canada Dry Ginger Ale product says “Made With Real Ginger,” the product contains “no detectable amount of ginger.” Hashemi v. Dr. Pepper Snapple Grp., Inc., No. 17-2042 (C.D. Cal., filed March 14, 2017). The plaintiffs argue that they hired an independent lab to test for ginger in the product, which is advertised on television with footage of the cans attached to ginger plants and a voice-over that asserts, “For refreshingly real ginger taste, grab a Canada Dry Ginger Ale. Real Ginger. Real Taste.” Seeking class certification, restitution, declaratory and injunctive relief, damages and attorney’s fees, the plaintiffs allege violations of the California and Colorado consumer-protection statutes as well as breaches of warranties, fraud and misrepresentation. Issue 628
A California federal court granted Campbell Soup Co.’s motion to dismiss a putative class action claiming the company “falsely and misleadingly labeled and advertised” one of its soups, ruling that the plaintiff’s claims are expressly preempted by federal law. Brower v. Campbell Soup Co., No. 16-1005 (S.D. Cal., order entered March 21, 2017). The plaintiffs alleged that Campbell’s Chunky Healthy Request Grilled Chicken & Sausage Gumbo was mislabeled and advertised as healthy despite containing artificial trans fat. Additional details about the complaint appear in Issue 602 of this Update. Campbell contended that the plaintiff’s claims were preempted by the Poultry Products Inspection Act (PPIA) and the Federal Meat Inspection Act (FMIA), both of which prohibit the sale of products with false or misleading labeling or marketing. Pursuant to both statutes, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) inspects and approves product labels. The court agreed, noting…
The Hungarian National Assembly is reportedly considering a proposed ban on Soviet and Nazi symbols that would impose fines of up to $6.97 million and a potential prison sentence on businesses using such marks, likely including Heineken and its red star logo. The ban targets symbols related to Hungary's years of Nazi occupation and decades of communist rule, including the swastika, hammer and sickle, arrow cross and red star. Hungary's Deputy Prime Minister Zsolt Semjen, a co-sponsor of the bill, reportedly called Heineken's red star logo "obvious political content" and would not deny that the bill was retaliation for a lengthy legal battle between Heineken and a brewery in Transylvania, a region of Romania home to many ethnic Hungarians. See Reuters, March 20, 2017. Issue 628
A Connecticut plaintiff filed a projected class action against Subway after DNA testing of the chain’s chicken sandwiches allegedly showed the meat was only 42 to 53 percent chicken and the remainder was processed soy. Moskowitz v. Doctor’s Associates Inc., No. 17-0387 (D. Conn., filed March 1, 2017). Researchers affiliated with the Canadian Broadcasting Company’s “Marketplace” news show apparently found that the meat used in Subway’s oven-roasted chicken items was only 53.6 percent chicken, while the meat used in the sweet onion teriyaki items was only 42.8 percent chicken. The plaintiff claims that Subway is “disseminating false and misleading information via advertising, marketing, its website, and menu intended to trick unsuspecting customers, into believing they are purchasing chicken for their money, rather than Sandwiches and Chicken Strips containing a multitude of ingredients.” The complaint alleges violations of the federal Magnuson-Moss Warranty Act, the Connecticut Unfair Trade Practices Act, breach of…
A consumer has filed a putative class action against the manufacturers of Rachael Ray’s dog foods, alleging that the products are labeled as “natural” despite containing artificial or synthetic chemicals. Grimm v. APN, Inc., No. 17-0356 (C.D. Cal., filed February 28, 2017). The plaintiff claims that she only bought the dog foods, sold under the Nutrish , Dish, Zero Grain and Just 6 labels, because they were labeled as natural and free of preservatives and would have purchased other products had she known the foods contained “artificial preservatives and unnatural ingredients.” The plaintiff alleges the defendant manufacturers “capitalized” on consumer preferences for natural food products. The product labels indicate that the dog foods contain L-ascorbyl-2 polyphosphate, menadione sodium bisulphate complex, thiamine mononitrate, and caramel color. For alleged negligent representation, violations of California’s Legal Remedies Act, False Advertising Law and Unfair Competition Law, breach of warranties and quasi-contract, the plaintiff is…
Slim-Fast Foods Co. has ended its “100 Calories Snacks” advertisements appearing in Star magazine after the advertising industry’s self-regulation investigative unit, the National Advertising Division, determined that the format of the ads could mislead consumers into believing they were part of the publication’s editorial content. The cover of Star featured “what appeared to be an article on weight loss that claimed, ‘Joann LOST 40 lbs’ and ‘snack away the weight,’” which directed readers to a page with a piece titled “Snack Your Way to Slim” that detailed three women’s efforts to lose weight and how Slim-Fast snacks supposedly helped. Slim-Fast has reportedly agreed to discontinue the advertisements at issue as well as the advertising format. Issue 626
The University of Connecticut’s Rudd Center for Food Policy and Obesity has released a study on TV food advertising viewed by preschoolers, children and adolescents, claiming that “food advertising exposure increased with age for both black and white youth, but black youth viewed approximately 50% or more ads than did white youth of the same age.” F. Fleming-Milici and J. L. Harris, “Television food advertising viewed by preschoolers, children and adolescents: contributors to differences in exposure for black and white youth in the United States,” Pediatric Obesity, December 2016. Based on Nielsen panel data gathered between 2008 and 2012, the study reports that “increases in food-ads-per-hour increased exposure for all youth,” but that greater TV viewing and higher rates of advertising “on youth- and black-targeted networks both contributed to black youth’s greater exposure.” “Four product categories contributed almost 60% of food ads viewed by all youth in 2012: breakfast cereals,…
The Federal Trade Commission’s (FTC’s) second public forum targeting the privacy and security implications of emerging technologies will cover topics that include (i) the Internet of Things and big data, (ii) mobile privacy, (iii) consumer privacy expectations, (iv) online behavioral advertising, and (v) information security. Slated for January 12, 2017, at the FTC’s Constitution Center in Washington, D.C., the event will also be available via live webcast. Details about the agenda and a pre-conference networking event are available at FTC's website. See FTC News Release, December 16, 2016. Issue 626
A consumer has filed a projected class action against Krispy Kreme Doughnuts, Inc., alleging the company’s blueberry, maple and raspberry products are not made with the ingredients in their fruit-based names. Saidian v. Krispy Kreme Doughnuts, Inc., No. 16-8338 (C.D. Cal., filed November 9, 2016). The complaint highlights health benefits apparently linked to raspberries, blueberries, maple syrup and maple sugar, asserting that Krispy Kreme charged a premium for its products to capitalize on those perceived health benefits while using imitation versions of the ingredients. The plaintiff also distinguishes the blueberry, raspberry and maple products from Krispy Kreme’s lemon, strawberry and cinnamon apple products, because the latter group does contain its advertised ingredients, leading to further consumer confusion. For allegations of fraud, misrepresentation and violations of California statutes, the plaintiff seeks class certification, an injunction, damages and attorney’s fees. Issue 622
