On February 25, the National Advertising Division (“NAD”) referred Nectar Sleep’s “Limited Offer: $125 Off + 2 Free Pillows” claim to the FTC after the advertiser declined to participate in the NAD’s self-regulatory process. The complaint was brought to the NAD’s attention by challenger Tuft & Needle, LLC, who alleged that Nectar’s offer was always available to consumers, and therefore was not a “limited” offer. The challenger also complained that Nectar’s pillows are not independently offered for sale and therefore should not be advertised as “free.” NAD requested substantiation from the advertiser but did not receive a substantive response from Nectar.

On February 26, the FTC announced a settlement with a weight-loss pill company that is alleged to have purchased 5-star Amazon reviews from a third party. The settlement includes a judgment of  $12.8 million (which will be suspended upon payment of $50,000 to the FTC and payment of outstanding taxes), and ongoing compliance requirements for 10 years. Notably, the settlement also requires the company to have competent and reliable scientific evidence substantiating any appetite suppressant, weight loss, “blocks fat,” or disease-treatment claims in the form of human clinical testing supporting the claims. This is the FTC’s first case challenging fake reviews purchased by a marketer and posted to an independent retail site.

In a challenge brought by Aquasana, Inc., the NAD determined that Advanced Purification Engineering Corp. (APEC), a manufacturer of water filtration systems, was not responsible for substantiating or correcting “Made in USA” claims made in customer reviews posted on third-party sites.

Continue Reading NAD Finds Responsibility for “Made In USA” Does Not Extend to Third-Party Customer Reviews

The National Advertising Division of the Council of Better Business Bureaus (“NAD”) has settled competing challenges between Kraft Heinz, the maker of Heinz Real Mayonnaise, and Unilever, the maker of Hellmann’s REAL Ketchup.

Continue Reading NAD Stops Spread of Confusion After Condiment Makers Lay it on Thick

In a recent unpublished ruling, the Ninth Circuit affirmed the dismissal of a putative class action lawsuit alleging that Blue Diamond Growers mislabeled its almond beverages by failing to identify products as “imitation milk.” Painter v. Blue Diamond Growers, No. 17-55901 (9th Cir. Dec. 20, 2018).

Continue Reading Ninth Circuit Spoils Putative Class Action Suit Alleging Consumer Confusion Over Almond Milk

MillerCoors launched a “Know Your Beer” campaign that included digital vignettes featuring beer customers who were asked to taste two unnamed beers (Miller Light vs. Bud Light), determine which beer had “more taste,” and select their choice. When the identities of the two beers were revealed, the vast majority of participating consumers expressed surprise at having chosen Miller Lite over Bud Light.

Continue Reading Anheuser-Busch Taps National Advertising Division to Scrutinize MillerCoors’ “Know Your Beer” Campaign Claims

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

Federal Court in Florida Grants FTC a Win in Gastric Bypass Alternative Case

A U.S. district court in Florida has ruled in favor of the FTC in its longstanding litigation against Roca Labs, Inc., a seller of weight-loss powders advertised as an alternative to gastric bypass surgery. The court found that Roca Labs had made deceptive weight-loss claims and misrepresented that one of its promotional websites was an objective information site. The court also found that Roca Labs’ gag clause, which the company used to sue and threaten to sue customers who shared negative comments or complained about their dissatisfaction with the product, was unfair under the FTC Act. After additional briefing, the court will decide how much of the defendants’ $26.6 million in gross sales should be awarded in consumer redress. Continue Reading Consumer Protection in Retail: Weekly Roundup

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

“Black Truffle Flavored Extra Virgin Olive Oil” Case Dismissed Against Trader Joe’s

On August 30, 2018, the Southern District of New York dismissed class action claims for consumers who purchased Trader Joe’s “Black Truffle Flavored Extra Virgin Olive Oil.” The complaint alleged that the product label contained the words “black truffle” in large black letters, with the words “flavored” and “extra virgin olive oil” in smaller cursive letters underneath. However, DNA testing revealed that the oil did not contain actual truffle, but rather 2,4-dithiapentane, a petroleum-based synthetic injection that imitates the taste and smell of truffles. Continue Reading Consumer Protection in Retail: Weekly Roundup

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

FTC Used Car Lot Sweep Finds 70 Percent Compliance with New “Buyers Guide”

Last month, the FTC announced the results of its compliance sweep of 94 car dealerships in 20 cities across the country, conducted after the FTC’s amended Used Car Rule (the “Rule”) took effect earlier this year. The revised Rule requires dealers to display a revised “Buyers Guide” containing warranty and other important information—such as a new description of an “As Is” sale—on the window of each used car offered for sale. According to the FTC, 70 percent of the 2,300 vehicles inspected displayed a buyer’s guide; over half of those with the guide displayed the updated version. As a follow-up, the FTC sent letters to each dealership inspected, detailing their findings and providing businesses with guidance material to help aid in compliance. Continue Reading Consumer Protection in Retail: Weekly Roundup