Swedish researchers have warned that the software packages used to analyze the results of functional magnetic resonance imaging (fMRI) contain flaws that increase the chance of a false positive by as much as 70 percent. Anders Eklund, “Cluster failure: Why fMRI inferences for spatial extent have inflated false-positive rates,” PNAS, June 2016. For more than 15 years, scientists have used fMRI analyses to explore the food addiction framework and the effect of food advertising on the brain, among other things. The Swedish study explains that the majority of fMRI studies rely on SPM, FSL or AFNI software packages based on “parametric statistical methods that depend on a variety of assumptions,” even though these methods have only been validated with simulated—as opposed to real— data. As a result, the researchers questioned whether these methods could potentially show brain activity in its absence, raising the issue of false positives. Using resting-state data…
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The Julia Child Foundation for Gastronomy and the Culinary Arts has filed a lawsuit against Airbnb Inc. alleging the home-sharing company used Child’s name and likeness without permission in an advertised promotion. Julia Child Found. For Gastronomy & Culinary Arts v. Airbnb Inc., No. 16-2626 (Cal. Super. Ct., Santa Barbara Cty., filed June 22, 2016). According to the complaint, Airbnb contacted the foundation in April 2016 requesting permission to use the famed American chef and author’s name and likeness in an ad promoting a free night’s stay at a French property Child and her husband had used as a summer home. “Consistent with Mrs. Child’s longstanding and widely-known policy of politely refusing all requests to associate her name or image with commercial products and brands,” the foundation denied the request, then discovered that Airbnb used her image in its marketing campaign anyway. The foundation seeks a preliminary and permanent injunction,…
In a letter sent to Nickelodeon and its parent company Viacom, Sens. Richard Blumenthal (D-Conn.), Jay Rockefeller (D-W.V.), Tom Harkin (D-Iowa), and Dick Durbin (D-Ill.) have called on the children’s entertainment network to stop showing advertisements for purportedly unhealthy foods and beverages that are “powerfully promoting childhood obesity.” Citing another company’s announcement last year that it would no longer accept advertisements for unhealthy foods on television, radio and websites directed at children, the senators asked Nickelodeon to “promptly take similar action to implement strong nutrition standards for all of its marketing to children.” “As a leading multi-media entertainment destination for children and adolescents, Nickelodeon has a special opportunity—and responsibility —to help address our nation’s childhood obesity epidemic,” the senators stated. “We ask that you implement a clear policy to guide the marketing of food to children on Nickelodeon’s various media platforms, including the advertisements on your channels, Internet sites, and…
Betty Inc., a Connecticut-based advertising agency, has filed a lawsuit alleging PepsiCo Inc. used its idea for a Super Bowl commercial without payment or attribution. Betty Inc. v. PepsiCo Inc., No. 16-4215 (S.D.N.Y., filed June 7, 2016). The complaint asserts that employees of Betty presented the idea for “All Kinds/Living Jukebox,” a tour through different musical genres and styles of dance representing the “Joy of Pepsi®,” in November 2015, then accepted PepsiCo’s request to refine the idea for a payment of $5,000. Betty argues it refined the idea but told PepsiCo that the $5,000 did not transfer any rights of use or ownership of the advertising concept. PepsiCo did not seek to further produce the concept after the refinement, but “[t]he Super Bowl halftime commercial PepsiCo aired during the 2016 Super Bowl copies, is fundamentally based on, and is derivative of, the ‘All Kinds/Living Jukebox’ advertising storyline Betty presented to…
Bompas & Parr has reportedly discontinued its “Anti-AGin Gin” after the National Advertising Division requested substantiation for claims that the product was “the alcoholic equivalent of a facial.” The company claimed the product “rejuvenates the skin while you drink” and was meant “for people who want to stay young but don’t want to give up alcohol.” The ingredients—including “drinkable collagen,” chamomile, witch hazel oil and green tea—were advertised as having skin-nourishing or healing properties. The product’s launch was reportedly accompanied by a press release calling it “a cheeky thank you” to Warner Leisure Hotels’ guests “for keeping our hotels fun and young.” The ad board noted that “humor does not diminish an advertiser’s obligation to make truthful and accurate advertising claims.” Bompas & Parr indicated that the product is no longer for sale and will not be reissued. See Advertising Self-Regulatory Council, May 26, 2016. Issue 606
A California federal court has dismissed a lawsuit brought by People for the Ethical Treatment of Animals (PETA) alleging Whole Foods Market Inc. misrepresents its meat products as humanely slaughtered with its Global Animal Partnership (GAP) 5-Step® Rating System. PETA v. Whole Foods Mkt. Cal., Inc., No. 15-4301 (N.D. Cal., order entered April 26, 2016). Details about the complaint appear in Issue 579 of this Update, while information about a previous dismissal without prejudice appears in Issue 593. The plaintiffs asserted that Whole Foods’ GAP rating system is a ”‛sham’ that is not actually enforced and the advertisements do not adequately disclose that ‘key animal treatment standards’ under the GAP rating ‘are no better or marginally better than is the common industry practice,’” according to the court. Whole Foods filed a motion to dismiss the case arguing that the plaintiffs failed to allege misrepresentations or an actionable omission under California law, and…
A New York federal court has rejected Chobani, LLC’s motion for reconsideration of a preliminary injunction preventing the company from claiming in its advertising that competitor Dannon Co.’s yogurt products contain chlorine and are thereby unhealthy, unsafe and inferior to Chobani yogurt. Chobani, LLC v. Dannon Co., Inc., No. 16-0030 (N.D.N.Y., order entered April 22, 2016). Chobani’s marketing campaign displayed an image of a swimming pool—which is cleaned with calcium hypochlorite, a substance colloquially referred to as “chlorine”—while asserting that Dannon Light & Fit® yogurt contained chlorine, one of four chemical elements that constitute sweetener sucralose. Additional details about the complaint appear in Issue 590 of this Update. According to the court, Chobani argued that the “limitations place it at a competitive disadvantage because it completely precludes usage of the phrase ‘no bad stuff’ in relation to Dannon products regardless of whether or not a safety message is at issue.…
A Florida federal court has denied Chipotle’s motion to dismiss a putative class action alleging the company misrepresents its food as free of genetically modified organisms (GMOs) despite selling meat produced from animals fed GMOs. Reilly v. Chipotle Mexican Grill, Inc., No. 15-23425 (S.D. Fla., order entered April 20, 2016). Chipotle argued that the plaintiff had no standing to sue because she did not specify which products she purchased; the court found she had sufficiently pleaded her claims to support standing for her consumer-protection claims, but not her request for an injunction. Chipotle also challenged the plaintiff’s understanding of “non-GMO” as “nonsensical,” but the “reasonableness of her definition, upon which her interpretation of Chipotle’s advertisements is based, is a question better decided upon examination of the evidence,” the court held. Accordingly, it granted Chipotle’s motion to dismiss the request for injunctive relief but denied it as to the rest of…
The Council of Better Business Bureaus (CBBB) and the National Confectioners Association have announced the Children’s Confection Advertising Initiative (CCAI), “a new self-regulatory initiative that promotes responsible advertising to children.” Modeled after the Children’s Food and Beverage Advertising Initiative (CFBAI), which includes six major confectioners, CCAI asks participating companies not to advertise to children younger than age 12 or in schools from pre-kindergarten through sixth grade. Six candy companies have already pledged to abide by CCAI advertising rules. As Federal Trade Commission (FTC) Chair Edith Ramirez remarked, “This new initiative is a welcome addition to the CBBB’s existing Children’s Food and Beverage Advertising Initiative and represents the type of self-regulatory solution the FTC has long advocated. The commitment by six confectionery companies to refrain from advertising in elementary schools and in media targeted at children is a positive step. I also hope that this new partnership with the National Confectioners…
The U.S. Department of Agriculture’s Office of the Under Secretary for Food Safety and the U.S. Food and Drug Administration are holding an April 13, 2016, public meeting in College Park, Maryland, to discuss U.S. draft positions for consideration at the 43rd Session of the Codex Committee on Labeling in Foods (CCFL) in Ottawa, Canada, on May 9-13. CCFL is charged with drafting food labeling provisions and addressing issues related to the advertisement of food with particular claims or misleading descriptions. Agenda items for the April 13 meeting include discussion papers focused on Internet food sales and the labeling of non-retail containers; proposed revisions to guidelines for use of the term “Halal”; and date marking. See Federal Register, February 26, 2016. Issue 598
