Last month, the solar eclipse captivated the United States and many consumers flocked to purchase solar eclipse glasses to safely observe the astronomical phenomenon. We previously reported how NASA issued a safety alert advising consumers on the proper eye protection they should seek. Now, some consumers have filed a class action lawsuit against a major online retailer for allegedly selling “unfit, extremely dangerous, and/or defective” solar eclipse glasses. As a result, the consumers allege “varying degrees of eye injury ranging from temporary discomfort to permanent blindness.”
This past week, several advertising actions made headlines that affect the retail industry.
Judge Stays Chicago Soda Tax at Last Minute
On June 30, 2017, a Cook County Circuit Court judge granted a temporary restraining order halting a new county law taxing sugar sweetened beverages. The tax was enacted in November of 2016 and originally was scheduled to go into effect on July 1, 2017. Siding with the Illinois Chamber of Commerce and several grocers, the judge found the tax to be unconstitutionally vague, as it applies only to bottled sodas and coffees, not prepared drinks from servers or baristas. The Cook County Board of Commissioners intends to appeal the court’s decision.
NAD Recommends Maker of “Natural” Cleaning Products Discontinue Claims
The NAD has recommended that BetterLife, the maker of “natural” cleaning products, discontinue ad claims implying that other cleaning products are dangerous, unsafe and unhealthy to use. S.C. Johnson & Son, Inc., the maker of Windex, challenged the claims. Better Life failed to provide any scientific support for its claims other than a time-lapse video showing the effect on Gerbera daisies submerged in bottles of Better Life’s all-purpose cleaner as compared to four competing products. Better Life agreed to comply with the NAD’s recommendations.
NAD Reviews Digital Projector Advertising Claims
The NAD recommended ViewSonic Corporation, maker of 1-chip DLP digital projectors, discontinue certain comparative claims, including “superior color accuracy,” after a competitor challenge by Epson America, Inc. The NAD also recommended that the company cease unsupported “color decay,” “color degradation” and “wider color range” comparative claims.
On June 13, 2017, Judge Andrea R. Wood of the Northern District of Illinois dismissed with prejudice a putative consumer class action filed against Barnes & Noble. The case was first filed after Barnes & Noble’s September 2012 announcement that “skimmers” had tampered with PIN pad terminals in 63 of its stores and exposed payment card information. The court had previously dismissed the plaintiffs’ original complaint without prejudice for failure to establish Article III standing. After the Seventh Circuit’s decision in Remijas v. Neiman Marcus Group, the plaintiffs filed an almost identical amended complaint that alleged the same causes of action and virtually identical facts. Although the court found that the first amended complaint sufficiently alleged Article III standing, the plaintiffs nevertheless failed to plead a viable claim. The court therefore dismissed the first amended complaint under Rule 12(b)(6). Continue Reading Putative Data Breach Class Action Dismissed for the Third Time
On May 23, 2017, various Attorneys General of 47 states and the District of Columbia announced that they had reached an $18.5 million settlement with Target regarding the states’ investigation of the company’s 2013 data breach. This represents the largest multi-state data breach settlement achieved to date. Continue Reading State Attorneys General and Target Resolve Investigation of 2013 Data Breach
This past week, several consumer protection actions made headlines that affect the retail industry.
NAD Recommends Kauai Coffee Discontinue and Modify Compost Claims
This week, NAD released their recommendations in their review of Kauai Coffee’s environmental claims for their single-serve coffee pod products. Kauai Coffee’s ads claim that the pods are “100% compostable,” but fail to clearly disclose that the pods are certified compostable only in industrial composting facilities, and are not suitable for home composting. While the pods are certified compostable by the Biodegradable Products Institute (“BPI”), BPI specified in its certification of the pods that they will disintegrate “swiftly and safely in a professionally managed composting facility.” NAD recommended that Kauai Coffee discontinue certain claims, and modify others to include the qualifying language: “Compostable in industrial facilities. Check locally, as these do not exist in many communities. Not certified for backyard composting.” Kauai Coffee said it will comply with NAD’s recommendations.
Continue Reading Consumer Protection in Retail: Weekly Roundup
On April 18, 2017, the state of Washington passed House Bill 1493 (“HB 1493”), which sets forth requirements for businesses who collect and use biometric identifiers for commercial purposes. Under HB 1493, a biometric identifier includes a fingerprint, voiceprint, retina, iris or other unique biological pattern or characteristic used to identify a specific individual. Commercial use includes “a purpose in furtherance of the sale or disclosure to a third party for the purpose of marketing of goods or services when such goods or services are unrelated to the initial transaction in which a person first gains possession of an individual’s biometric identifier.” This bill comes after several other states have passed similar legislation regulating the commercial use of biometric identifiers, including the Illinois Biometric Information Privacy Act (740 ILCS 14) (“BIPA”) and the Texas Statute on the Capture or Use of Biometric Identifier (Tex. Bus. & Com. Code Ann. §503.001). Continue Reading Washington State Passes New Legislation on Collection and Use of Biometric Identifiers
This past week, several consumer actions made headlines that affect the retail industry.
Chairwoman Ramirez Announces Resignation
FTC Chairwoman Edith Ramirez announced that she will resign effective February 10, 2017. Chairwoman Ramirez joined the FTC on April 5, 2010, and has headed the agency since March 4, 2013. During her tenure as Chairwoman, the FTC brought close to 400 consumer protection action and approximately 100 challenges to mergers and business conduct. Continue Reading Consumer Protection in Retail: Weekly Roundup
The American Tort Reform Association recently released the 2016–2017 edition of its “Judicial Hellholes” report. This annual report identifies venues it deems least favorable for civil defendants based on recent decisions and verdicts, as well as state laws and policies. Continue Reading ATRA Releases Annual “Judicial Hellholes” Report
Mars, Inc. and its M&M’s Minis candy are the latest targets in a wave of “slack-fill” litigation.
Slack-fill is empty space in product packaging – i.e., the difference between the maximum capacity of a product’s container and the actual volume of product inside. Slack-fill litigation has increased in recent years as class plaintiffs allege that companies are deliberately including empty space in their packaging to deceive consumers into paying higher prices for lower product quantities. Continue Reading More Slack Fill Litigation, and Retailers Are Not Exempt
Last month, the American Tort Reform Foundation (“ATRF”) released the 2015-2016 edition of its annual “Judicial Hellholes” report. Each year, the report identifies the venues it deems the least favorable for defendants and highlights notable pro-plaintiff rulings and practices in each jurisdiction. Continue Reading ATRF Names Nine Jurisdictions as “Judicial Hellholes” for Defendants