Heartland Consumer Products, producer of sucralose-based sweetener Splenda®, has filed a lawsuit against Dunkin’ Brands, Inc. and its franchisees alleging the restaurant chain misleads its customers into believing it carries Splenda® while providing a different sweetener made in China. Heartland Consumer Prods. v. Dunkin’ Brands, Inc., No. 16-3045 (S.D. Ind., Indianapolis Div., filed November 7, 2016). According to the complaint, Dunkin regularly purchased Splenda® from Heartland until April 2016, when it switched to a different sucralose sweetener. Heartland asserts that Dunkin employees continue to tell customers that the sweetener is Splenda even though the new sweetener is a “Chinese-made, off-brand sucralose.” Heartland further argues that Dunkin appropriated its “Sweet Swaps” program by creating a Dunkin-branded “Smart Swaps” program. The complaint asserts that Heartland received multiple reports of consumer confusion, including one customer who reported that a Dunkin employee said Dunkin had “bought out Splenda.” For allegations of trademark infringement, dilution, false…
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The World Health Organization (WHO) has issued a November 4, 2016, report titled "Tackling food marketing to children in a digital world: trans-disciplinary perspectives," which urges policymakers “to reduce children’s exposure to all forms of marketing for foods high in fats, salt and sugars [HFSS], including via digital media.” In particular, the report claims digital marketing campaigns take advantage of regulatory loopholes to amplify the traditional media advertising of HFSS foods, “achieving greater ad attention and recall, greater brand awareness and more positive brand attitudes, greater intent to purchase and higher product sales.” The report calls attention to the privacy issues that purportedly surround the digital marketing of foods to children, including the collection and use of geo-location and personal data. It also warns that “some food chains partner with gaming companies in order to, for example, make the chain’s restaurants important game locations,” while other advertisers reportedly rely on advergames, social…
Two consumers have filed a lawsuit against Subway Sandwich Shops Inc. and T-Mobile USA Inc. alleging the companies sent unsolicited text messages advertising an offer for a free sandwich without first obtaining written consent from the recipients. Rahmany v. T-Mobile USA Inc., No. 16-1416 (W.D. Wash., filed September 6, 2016). The complaint asserts that the plaintiffs each received an unsolicited text on September 1, 2016, advertising a free 6-inch chicken sandwich from Subway, with a link to download the T-Mobile app for additional details. T-Mobile sent the message with an automatic telephone dialing system “with the consent and encouragement of Subway for the purposes of financial gain in a mutually beneficial relationship between those two companies,” the plaintiffs allege. For alleged violations of the Telephone Consumer Protection Act (TCPA), the plaintiffs seek $500 per negligent violation and $1,500 per knowing or willful violation. Issue 616
A California federal court has granted in part and denied in part a motion to dismiss a lawsuit alleging Chipotle Mexican Grill Inc. misleadingly advertises its food as free of genetically modified organisms (GMOs) despite allegedly selling flour and corn tortillas with GMOs, using GMO soy in its cooking oils and serving meat and dairy products derived from animals fed GMO feed. Pappas v. Chipotle Mexican Grill Inc., No. 16-0612 (S.D. Cal., order entered August 31, 2016). Chipotle argued that reasonable consumers would not “equate ‘nonGMO ingredients’ with ingredients not derived from animals that have eaten genetically modified feed.” The plaintiff argued that the reasonable consumer standard was not applicable at the motion-to-dismiss stage in a fraud or deception case, but the court found that the standard could be used to hold the plaintiff’s allegations to be implausible. The court compared the plaintiff’s meat and dairy allegations to a case…
Timed to coincide with PepsiCo’s limited reintroduction of Crystal Pepsi soft drinks, SumOfUs has launched a viral video campaign to draw attention to its allegations against the palm-oil industry. The video—which spoofs PepsiCo’s 1992 Super Bowl spot—has garnered media attention as well as more than 875,000 views on YouTube. In particular, SumOfUs reportedly claims that PepsiCo’s palm-oil policy does not cover Indonesia-based producer, IndoFood. According to Rainforest Action Network’s Gemma Tillack, “A nostalgia for rollerblades and fanny packs is fine, but it’s crystal clear PepsiCo needs to open its eyes and realize we are no longer in the 1990’s and deforestation, wildlife extinction and labor abuses are no longer acceptable costs of doing business.” See Politico.com and Ad Age, August 9, 2016. Meanwhile, an August 18 Forbes column authored by Hudson Institute Senior Fellow Hank Cardello argues that food companies and marketers “no longer have the sole power to shape consumer…
A consumer has filed a purported class action against PepsiCo and subsidiary Izze Beverage Co. alleging Izze carbonated juice drinks are misleadingly marketed as containing “no preservatives” despite the presence of citric or ascorbic acid. Lindberg v. PepsiCo Inc., No. 16-6569 (S.D.N.Y., filed August 19, 2016). The complaint also challenges Izze’s claim that each bottle “delivers two servings of fruit based on [U.S. Department of Agriculture’s (USDA’s)] 2010 Dietary Guidelines,” which is misleading because “the USDA did away with this measure of servings in its 2010 Guidelines precisely because it misleads consumers about how much of various food groups they should eat or drink.” The plaintiff asserts the dietary guidelines claim is also misleading because it “falsely suggests that Izze Sodas contain the nutritional value and health benefits that can be obtained by eating fruit. Whole fruit contains fiber, vitamins, and minerals. Even if Izze Sodas were originally manufactured with…
The Children’s Advertising Review Unit (CARU) has advised Kellogg Co. to revise the packaging for Fruit Flavored Snacks, recommending against statements that the product is “made with real fruit.” The front of the package featured cartoon characters and the statement “made with real fruit” superimposed on the image of an apple. The side panel clarified that the snacks are “made with equal to 20% fruit.” Based on a typical child’s interpretation of the message, CARU found that children may be confused because “although the fruit flavored snacks were made with fruit puree concentrate, at the end of the process, only a very small amount of actual fruit puree concentrate was included in each serving of the product.” In a statement, Kellogg indicated that it disagreed with CARU’s findings but would modify the language and remove the apple logo in deference to the self-regulatory process. Issue 614
The Washington Legal Foundation (WLF) has filed an amicus brief with the Ninth Circuit Court of Appeals arguing the court should enjoin a San Francisco statute requiring advertisements of sugar-sweetened beverages (SSBs) to disclose health warnings related to their consumption. Am. Beverage Assoc. v. City of San Francisco, Nos. 16-16072 and 16-16073 (9th Cir., amicus brief filed August 4, 2016). The brief argues that the government cannot compel speech unless the speech is designed to dispel deception, and San Francisco has failed to show the warning prevents consumer deception. “The First Amendment protects not only the right to speak but also the right not to speak,” WLF Chief Counsel Richard Samp said in an August 4, 2016, press release. “In the absence of evidence that advertisements for sugar-sweetened beverages are deceiving consumers, soft drink manufacturers should not be required to include ominous health warnings in their ads.” Issue 613
Following a consumer complaint, the Beer Institute has reviewed Anheuser-Busch Companies, LLC’s Super Bowl ad featuring comedians Seth Rogen and Amy Schumer discussing the “biggest caucus in the country” and determined the ad does not violate the industry group’s marketing standards. Under the standards, “advertising and marketing materials should not contain languages or images that are lewd or indecent in the context presented and the medium in which the material appears.” The consumer argued that the use of “caucus” could be interpreted as sexually suggestive in context, but the review board disagreed, finding, “From the perspective of a reasonable adult consumer of legal drinking age, the mere use of a sexually suggestive pun would not be seen as ‘vile,’ ‘inciting to lust or lechery,’ patently offensive, or offending recognized standards of good taste.” The board pointed to similar puns appearing on “Live with Kelly & Michael” and “comments from Marco…
The U.K. Advertising Standards Authority (ASA) has upheld two complaints alleging that advertisements touting Kellogg Co.’s Special K® products as “full of goodness” and “nutritious” violated broadcast (BCAP) and non-broadcast (CAP) advertising codes for food, food supplements and associated health claims. The complaints targeted a TV ad for Special K® porridge that included supported health claim related to vitamin B2, as well as website claims regarding the product’s “unique Nutri K™ recipe.” According to ASA, the agency “shared Kellogg’s view that the claim ‘full of goodness’ was a reference to a general, non-specific health benefit of the product and as such, we agreed that Kellogg was required to accompany it with a specific authorized health claim.” But because the authorized vitamin B2 claim did not immediately follow the general health claim, ASA found the ad in breach of BCAP Code Rule 13.4.3. The watchdog also felt that the website advertisement…
