This past week, several consumer actions made headlines that affect the retail industry.

First Circuit Dismisses Deceptive Advertising Claims against Two Large Retailers

The First Circuit Court of Appeals has held that consumers who brought nearly identical deceptive pricing cases against two large retailers failed to prove that they had been injured. One suit alleged that one company falsely advertised “compare at” prices on sales tags; the other suit alleged that the other company deceptively set lower prices for its exclusive and private-label products and advertised them as discounted. In both cases, the plaintiffs alleged that the mere purchase of the item itself constituted injury. The First Circuit rejected this argument, observing that the consumers (1) had not alleged that the items were poorly made, (2) had received the benefits of their bargains, and (3) that a false sense of a product’s value does not constitute injury.  

NARB Chips Away at Sally Hansen Claims

The National Advertising Review Board (“NARB”) has recommended that Coty Inc. discontinue claims that its Sally Hansen Miracle Gel Nail Polish provides “up to 14 days of color & shine.” After Coty appealed the NAD’s decision, the NARB found that the “14 days” claim conveyed a message of long lasting color and shine unsupported by the record. The NARB also recommended that Coty stop referring to the product as “no light gel” or “gel without a light” in certain contexts.

NAD Dampens Air Wick Claims

The NAD has recommended that Reckitt Benckiser LLC discontinue certain claims for its Air Wick AW Pure products; among them, the use of the “Frizzy Hair” demonstration showing a woman’s hair turning frizzy after spraying a room with a traditional aerosol. The claims were challenged by the maker of Febreze products.

NAD Recommends Reckitt Benckiser Discontinue Certain Claims

The NAD has recommended that Reckitt Benckiser LLC also discontinue claims that its Amope GelActiv Insoles offer “improved comfort” while wearing high heels. Other claims, such as “Heels Hurt. Amope turns heels into sneakers,” were deemed to be puffery. The claims were challenged by the maker of Dr. Scholl’s.