Consumer Advertising Law Blog

UK ASA Tripping About Travel Review Website

The UK’s advertising regulator, the Advertising Standards Authority (ASA), has told travel review website TripAdvisor LLC to stop making claims that its content is honest, real and trusted amidst findings that the site may host fake reviews. The website claims that it “offers trusted advice from real travelers…More than 50 million honest travel reviews and opinions from real travelers around the world” and “Reviews you can trust”. However, several complainants challenged whether those claims can be substantiated. TripAdvisor responded to the complaints by saying that while they could not guarantee that reviews were 100% free from fraudulent content, they use fraud detection systems to identify and minimise non-genuine content; therefore the practical impact of small numbers of fraudulent reviews slipping through the net is negligible. TripAdvisor also explained that it requires reviewers to give a declaration that their review is genuine and honest and makes clear that fake reviews are both illegal and prohibited by their T&Cs.

Assessing the claims, the ASA acknowledged that TripAdvisor takes steps to monitor suspicious content and asks reviewers to declare that their review is genuine. However it found that reviews could be placed on the site without verification and that non-genuine content could appear on the site undetected. On that basis, it concluded that the claims which implied consumers could be assured that TripAdvisor reviews were honest and trusted were misleading.

Claims made by advertisers and marketers must be capable of substantiation and must not mislead consumers. While TripAdvisor had taken steps to monitor and catch fake content, it had not done enough to make out its claims that travellers’ reviews are genuine and honest.

- Richard Dickinson and Gemma Davies

After Bump in the Road, FTC Puts the Brakes on Gas Mileage Device

Although the FTC has yet to finalize the revised Green Guides over a year since the comment period ended without final action, green claims, particularly ones that stretch credulity, are still an enforcement priority.  The FTC recently settled with the marketers of the “Hydro-Assist Fuel Cell.”  The settlement brings to a close an almost three-year long litigation in the District of New Jersey over the veracity of the marketers’ claims, including that the device would “Turn Any Vehicle into a Hybrid.”  In its January 2009 complaint and TRO brief, the FTC alleged that the marketers--Dennis Lee, Dutchman Enterprises LLC, and United Community Services of America Inc. (d/b/a UCSA Dealers Group LLC)--misrepresented that the device could improve fuel economy.  The marketers claimed that the device could improve fuel mileage by 50% to 261% through a combination of mixing hydrogen produced by electrolysis with the car’s gasoline and pre-treating the gasoline so that it burned more completely.  The FTC argued that the marketers’ claims violate the laws of thermodynamics--the device has to consume more energy than it can produce. 

The court granted the TRO and set a date for a preliminary injunction hearing.  After the first preliminary injunction hearing in February 2009, the magistrate judge issued a report recommending that the preliminary injunction be denied.  The magistrate judge concluded that the FTC failed to establish that there was probable cause that the FTC Act had been violated for the following reasons:  (1) the FTC didn’t rebut the marketers’ proffered scientific evidence with specificity; (2) while the FTC’s expert was an expert in physics, he was not an expert in automotive engines; (3) the FTC’s expert had not examined or tested the device; and (4) the FTC’s expert acknowledged that adding hydrogen to gasoline could increase fuel efficiency and that a similar device being developed at MIT had potential.

In a lucky twist of fate for the FTC, the recording of the first preliminary hearing was inaudible, preventing a true transcript of the proceeding, and the court ordered a new hearing. Taking advantage of the do-over, the FTC submitted supplemental expert reports and briefing to address the magistrate judge’s concerns while maintaining that the magistrate judge had improperly interpreted the FTC’s burden.  The parties eventually entered into a stipulated preliminary injunction and ultimately a settlement agreement.

The settlement includes a $2,738,950 monetary judgment, all but $230,356 of which will be suspended upon the transfer of the assets of certain bank accounts to the FTC for consumer redress. The settlement order prohibits the defendants from marketing any product purporting to generate energy, reduce energy consumption, or improve energy efficiency. Defendants are permitted to sell their remaining stock of “Hydro-Assist Fuel Cells” as long as they don’t represent that the device generates energy, reduces energy consumption, or improves fuel efficiency and they prohibit by contract their dealers from making such claims.  Defendants are obligated to monitor their dealer’s advertising and report violations to the FTC.  With respect to other products, defendants are prohibited from making any false or misleading representations and from making representations without competent and reliable evidence.  Defendants are further prohibited from using customer information obtained in connection with the marketing and sale of the “Hydro-Assist Fuel Cell” device. 

We suspect it unlikely that the FTC will pursue vigorously cases related to claims that are new subjects of the proposed revised Green Guides until this new guidance is final.  After that time, we expect to see a flurry of enforcement activity.  In the meantime, take a hard look at any green claims and make sure they are substantiated and properly explained so consumers understand the breadth and limits to the environmental benefits your product offers.  If it looks too good to be true, know the FTC may well come knocking. 

- Matt Shultz

UK Invasion of NAD: Challenge to Photo Enhanced Cover Girl Ad

I think we can agree that photo shopping in print ads does not help boost the self esteem of women of all ages.  But is it misleading? 

The National Advertising Division brought a monitoring case against P&G's Cover Girl mascara ads featuring Taylor Swift. (This is a challenge to ad substantiation not brought by the typical competitor challenger, but by the NAD itself as part of its own review of advertising.). The ad claimed the mascara would provide 2x more volume (than bare lashes) and was 20% lighter (than the most expensive mascara). The NAD's beef was not with these claims, but with the batting eye photo of the lovely young country cross over star. NAD requested substantiation for implied claims that consumers who use the product will get lashes like those depicted in the photo and that the lashes in the photo were achieved solely by using the mascara. It is well established that claims can be modified with appropriate, clear and conspicuous disclaimers. Product demonstrations on the other hand, have been challenged as far back as Rapid Shave and Campbell’s Soup when the demonstration has been enhanced. However, in this case, P&G presumably accurately stated the product’s benefits - 2x more volume and 20% lighter. If so, does it matter then that P&G also may have enhanced what those benefits looked like on a particular individual, in this case the lovely Ms. Swift?  And should it matter that they also fessed up to it in the form of a disclosure below the photo that "lashes enhanced post production"?  We’ll never know for sure because P&G, rather than plead its case, notified the NAD that it was discontinuing the ad and claims.  However, NAD’s “decision” certainly suggests that they would have taken issue with the post production “enhancements.”

This case follows closely on the heels of a recent UK decision involving Julia Roberts in a foundation ad in which the ASA was concerned that consumers may not appreciate that the model was touched up.  The ASA case is arguably distinguishable as the photograph possibly played a much larger role in conveying the claims, but clearly now in light of both decisions photographic “enhancements” even with disclaimers are likely risky.  What is perhaps more worrisome is the NAD’s suggestion that there may have been an implied claim that women using the product will look like Ms. Swift, or at least her lashes.  If the photograph had shown Ms. Swift’s lashes at 2x their volume, as claimed, should P&G have also been tagged with the additional claim that women’s lashes will look like Ms. Swift’s rather than simply being twice whatever their initial volume may have been?  After all, a Ferrari and a Ford Taurus may both run better on high test gasoline, but they’re not starting from an equal playing field.  The NAD’s decision emphasizes the “enhancement” rather than the “results” issue so perhaps that question will be more clearly answered another day. 

In any event, as regular readers of this blog know I sometimes am guilty of oversharing, but here goes again -- I sadly bid farewell to my thick twenty-something lashes long ago, so I suspect even an unretouched Taylor would have dramatically thicker lashes with her Cover Girl mascara than I would using the same product.  I do not feel deceived, and I think at least for now I will keep my day job rather than hope for a lucrative Cover Girl career, particularly since any “post production enhancements” now seem out of the question.

- Amy Mudge

 

EU Bureaucrats Have Been Drinking Something, Not Water

The EU earlier this month banned companies that sell water from making claims that water “hydrates.”  Penalties for making such an outrageous claim can range up to two years in prison. What’s going on here you might wonder?  Is it not only the Euro that has become destabilized but also EU bureaucrats?  Apparently the thinking behind this decision is that there are certain medical conditions that can lead to dehydration. So although water can help hydrate someone who’s just engaged in vigorous physical activity or has been out in the hot sun all day, it’s not a “cure” for any disease that causes dehydration and shouldn’t be marketed as such. The EU was asked to consider this issue following an application by two German Professors, who were concerned to ensure that hydration claims wouldn’t be interpreted as meaning that water intake can reduce the risk of developing a human disease.

From the US perspective, it seems that the EU has lost sight of the basic principles that claims must be interpreted through the eyes of a reasonable consumer and in the context of an advertisement as a whole. If a company creates an advertisement showing a beach volleyball player drinking water during a break, surely no reasonable consumer will believe that the product is being marketed as a “cure” for diabetes or diarrhea or any other medical condition that causes excessive thirst or dehydration.  The claim that water helps you “hydrate” to a reasonable consumer is more likely a good reminder that they need to drink an adequate amount of fluids each day and that water can be an important and healthy choice.  Nor is there anything misleading, as some have suggested, about claiming your product helps with something if there are other products that help as well. If the EU truly intends to go down this path it has its work cut out for it. Is the slogan that Snickers is "the snack that satisfies" next -- it won’t satisfy if you’re suffering from a medical condition that causes hunger or malnutrition.  Let water be water and let’s move on to more important things.

- Randy Shaheen

UK ASA: So, You Say Got Connections?

The UK’s advertising regulator, the Advertising Standards Authority (ASA), has banned an advert run by the company Rising Models for the “VIP Model Club” on grounds that it is misleading and the claims unsubstantiated.

The advert, which was published on Rising Models’ own website, stated that the company had “connections with the most ELITE modelling agencies in the country” and invited readers to join “FOR A CHANCE TO SIGN WITH A MAJOR MODELLING AGENCY”. The ASA received one complaint which challenged whether the claim that the company had  “connections with the most ELITE modelling agencies” could be substantiated. In response, Rising Models said that they were not a modelling agency and did not claim to offer work opportunities; they merely had a list of eight contacts which they did not claim to know personally. They also pointed to their “Terms of Use” which they argued demonstrated that they were not a modelling agency. Upholding the complaint, the ASA concluded that the claims implied that some readers could find work opportunities by subscribing to the VIP Model Club, and it considered that readers would understand the claims to mean that Rising Models had working relationships with the UK’s leading modelling agencies. Although Rising Models provided eight e-mail addresses and names that seemed to refer to modelling agencies, that evidence was insufficient to demonstrate that the agencies had recent business connections with Rising Models, or indeed that they were considered, by industry standards, to be the “most elite”.

Moral:  In all instances, ensure that claims are clear and that they can be properly substantiated.

- Richard Dickinson

Trust But Substantiate - Were Sugary Drink Companies Really Targeting Minorities?

We like to enjoy an occasional nonadult sugary beverage. And some of our good friends are sugary drink manufacturers. So it was with some interest that we read news stories earlier this month about a new report that found that blacks and hispanics were major targets of soda and other sugary drink advertisements. However, also being advertising lawyers we couldn’t help but wonder about the substantiation for that claim. (Our kids really hate it when we ask them to put together a substantiation file to support claims like “it’s been at least a month since you let me have a sleepover.”) So we read the underlying report issued by the Yale Rudd Center For Food Policy & Obesity, and it raises a few questions. 

The report (at page 65) notes that black children and teens viewed 81% and 90% more TV ads for sugary drinks than their white counterparts in 2010. For the more narrow category of regular soda, the differences were 93% and 77% respectively. However, the report notes that black children watched 50% more TV than white children and black teens viewed 64% more TV than white teens. Thus, a significant portion of the difference in ad exposure was likely due to increased TV viewing, and not alleged targeting. Indeed, with respect to soda, almost all the difference between black and white teens might be explained that way. If other parts of the Center's methodology are similarly flawed, the differences between the populations might even lose any statistical difference. 

Oddly enough, the significance of making this type of adjustment is not completely lost on the Center.  In their fact sheets discussing targeting of various groups by sugary drink marketers, the Center notes that teens in general viewed more TV ads than adults. The Center notes that this difference is even more significant because teens in general watch less TV than adults. Despite that observation, the fact sheet on black youth uses the 81% and 90% figures without any mention of the fact that these numbers are less significant because black youth watch significantly more TV than white youth. In terms of adjusting for viewing habits, the Center seems happy to incorporate that item into its analysis when it comes to explaining that kids watch more ads than adults, but, when that same approach diminishes the impact of striking statistics, the Center neglects to incorporate the adjustment for viewing habits into the text of its report. I'm doubtful that the FTC would endorse such a strategy for any commercial advertiser. 

So caveat emptor and caveat lector (reader) as well.

- Randy Shaheen

 

 

Seller Beware: California says “Plastic is NOT Biodegradable!”

If you were thinking of tossing that supposedly “biodegradable” plastic bottle out your car window along with that banana peel -- first of all, shame on you! But second, California says labeling a plastic product as “biodegradable” is inherently misleading and is not allowed in that state.

On October 26, 2011, California Attorney General Kamala Harris sued two makers of plastic bottles and their plastic resin supplier for advertising the bottles as “biodegradable” in violation of California law.  She accused them of “greenwashing” their products, thereby misleading consumers into becoming litter bugs.

Kamala Harris doesn’t care if you say your plastic bottle is full of special microbes that will chew it up and spit it out. You still can’t call it “biodegradable.”  Furthermore, if these microbes contaminate the recycling stream, you also can’t call your bottle “recyclable.”

The three defendants -- two are based in other states -- now find themselves caught in a web of California and federal laws and regulations that require makers and sellers of plastic products to be very careful about the “green” claims they make.

California Law - For Now

In 2008, California enacted a law that prohibited labeling plastic bags and plastic food and beverage containers as “biodegradable,” “degradable,” or “decomposable” or otherwise implying that the item would break down in a landfill or other environment. 

The 2008 law also prohibited labeling plastic bags and plastic food and beverage containers as “compostable” or “marine degradable” unless the item met specific testing standards established by the American Society for Testing and Materials (ASTM).

Beginning in July of 2011, the 2008 law also required manufacturers of “compostable plastic bags” to comply with the Federal Trade Commission Guides for Use of Environmental Marketing Claims (affectionately known as the “Green Guides”). In particular, makers of plastic compost bin liners must make sure the bags have all sorts of visual cues for consumers, like dying the bag green, or labeling both sides as “COMPOSTABLE” in big letters next to a big green stripe.

After July 1, 2011, compostable plastic bag makers also were not allowed to market their bags as “recyclable” for fear that they will “contaminate” the recycling stream.

Violators could be on the hook for civil fines up to $2,000 per violation for repeat offenders, plus court costs if the state sues and wins. But the price tag for not playing by the rules could be even higher, since the law doesn’t rule out class action lawsuits under California’s Unfair Competition Law.  And potential plaintiffs’ lawyers get free discovery: California law contains provisions requiring companies to provide substantiation for certain “green” claims to any member of the public upon request (see here and here).

California Law - Coming Soon

Beginning on January 1, 2013, the California law will be expanded to include all “plastic products” (think packaging, straws, utensils, toys, desk accessories, and virtually any other plastic consumer product you can imagine).

The rules for labeling plastic products as “compostable” will change just a little. In addition to being allowed to use the terms “compostable” and “marine degradable” (so long as you meet the relevant ASTM standard), you can also start using the term “home compostable” if you meet the certification requirements of a Belgian group called Vinçotte.  (Oh-la-la.)

But if you’re hoping to start calling your plastic product “biodegradable” any time soon, don’t hold your breath. California is sticking to its view that calling a plastic product “biodegradable” is inherently misleading.

California vs. USA: Drumroll . . . California Wins!

California’s rules -- especially the ban on labeling plastic products “biodegradable” -- are tougher than the FTC’s Green Guides.  But you already guessed that, right?

-Trent Norris and Zack Allen

Drive: Moviegoer Falls Asleep at the Wheel; Sues Over Misleading Trailer

Have you ever seen a preview for a comedy and then went to see the movie afterwards, turned to the person you went with and said, “You know, they put all the funny parts in the trailer". I have. Well a moviegoer in Michigan who went to see the movie “Drive” is now arguing (see the complaint here) that the trailer for the film was misleading in that there is very little driving in “Drive.” To paraphrase the line above, she argues that they put all the driving in the preview and led her to believe, falsely, that she would be seeing a movie in the genre of “Fast and Furious.” All of which raises some interesting questions.

There’s little doubt that movie trailers are advertisements. But until a few years ago the FTC, at least, would have likely exempted movie trailers from scrutiny under the mirror image doctrine, whereby advertisements for books (and presumably movies) were exempt from Section 5 as long as they simply quoted or “mirrored” the contents of the book. However, the Commission rescinded its Mirror Image policy in 2009, largely as a result of developments in the Supreme Court’s commercial speech jurisprudence.

And what about puffery? Challenging a trailer for a comedy because the movie wasn’t really all that funny seems like it should run smack into the puffery defense. Whether a movie is funny is a subjective question just like whether something “tastes great.” Same for the trailer of a horror movie that allegedly wasn’t very scary. But the allegation here is more akin to misrepresenting the genre of the movie rather than misrepresenting the quality. At least at the extremes one could imagine a claim that might steer clear of puffery - if most people watching a trailer thought the movie was a romantic comedy but it was really a teenage slasher film, it seems conceivable that a judge might allow such a claim to proceed. Though one has to wonder why any movie studio would want to engage in such a practice since it likely results in an audience for a film that is likely not to enjoy or recommend it. So keep your eyes and ears peeled. If movie trailers start to seem a little less exciting or a little less funny perhaps you have this Michigan plaintiff to thank (or blame).

- Randy Shaheen

Attend a Mock Lanham Act Argument Focusing on the “Havana Club” Case

The recent Havana Club case is potentially a huge development in Lanham Act false advertising law, and it is the subject of an ABA Antitrust-Private Advertising Committee teleseminar, tomorrow (October 11) at 12:30 eastern. 

It’s hornbook law that a literally truthful advertising claim can be enjoined because it conveys a false implied claim as measured by a survey.  Previously, the only real exception to this rule was the 7th Circuit’s Mead Johnson case regarding the claim “1st Choice in Doctors,” which Judge Easterbrook said could not be attacked with a survey because the claim was “objectively verifiable.” 

Mead Johnson has not really been followed, and previously was thought to be an issue unique to the Seventh Circuit. That is, until Havana Club.  There, the Third Circuit joined the Seventh Circuit and adopted the Mead Johnson rule that a literally truthful and unambiguous claim is not subject to attack by a survey. The court said that plaintiff could not introduce a survey to show that “Havana Club” conveyed a false implied message that the rum was made in Cuba -- because the bottle disclosed that it was actually from Puerto Rico. 

Thus, when a court decides that an implied falsehood theory is too tenuous, it can exclude and not even consider a survey (regardless of how well the survey is designed).

The implications remain to be seen.

Dial in for the free ABA teleseminar where Lanham Act litigators will debate a mock hypothetical that features the Havana Club issue. 

- Randy Miller

Do What We Say, Not What We Do? For Advertisers and Enforcers, Words Matter!

It was a big press day for the FTC announcing its $25 million settlement with Reebok last Wednesday over allegedly deceptive ads for its toning shoes promising “a better butt and better legs with every step.” The Commission's press release trumpeted that "[t]he FTC wants national advertisers to understand that they must exercise some responsibility." (Pun most certainly intended). David Vladeck, Director of the agency's Bureau of Consumer Protection, said, “Consumers expected to get a workout, not to get worked over." 

If we applied the FTC's own standards for advertising to its press release, would an average reasonable consumer believe that the company had "exercised" no responsibility?  In fact, a closer examination of the record suggests that Reebok had undertaken scientific testing, but that its testing was alleged to be inadequate. In other words, Reebok lacked adequate substantiation. A recent NAD case involved some of the same products and claims in the FTC action -- NAD examined Reebok’s testing to support claims for the EasyTone footwear and found Reebok had conducted an independent study by a qualified expert, but concluded the study was too small and the testing in a lab did not necessarily reflect real world conditions of women using the shoes in daily life. Reebok's own press release in connection with the settlement states that the company conducted sway tests, pressure tests, EMG tests, and wear tests, and that additional testing is underway (Which, since Reebok is paying consumer redress, raises the interesting question of whether, if the additional testing substantiates the claim, can they get their redress money back?).  Given these additional facts, as the company that pretty much put aerobics shoes on the map (who remembers these classics appropriately coupled with a gold headband and legwarmers for step class), surely Reebok exercised “some responsibility”.

Now, we're not suggesting that the FTC shouldn’t go after misleading claims, even if the advertiser's intentions were good or their studies are insufficient rather than nonexistent. But, in this electronic age, press releases live forever on Google and elsewhere.  And few, if any, people are likely to read the FTC's complaint or other materials to get "the rest of the story."  We're all for trying to make information entertaining, heck, we try to do that here, but we wonder whether the public, and advertisers, might not be better served by a bit more balance sometimes in the Commission's press releases. 

- Amy Mudge

It’s as Natural as…

What is natural?  That is a question that has generated much buzz in the courts and in the press.  We previously blogged about the Snapple suit here  and noted that after the suit was brought against Snapple, the company swapped out the contentious corn syrup ingredient for sugar.  The Corn Refiners Association is also under heat from a lawsuit brought by major sugar companies alleging that the Corn Refiners’ commercials and other attempts to rebrand corn syrup as “corn sugar”, “co-opt the goodwill of ‘sugar’ and… sidestep growing consumer sentiment” and are false and misleading. 

A new slew of cases have begun to address the issue of which ingredients would render the “All Natural” label false. It seems that for companies wanting to be accepted by the public as a natural brand, it’s not as easy as removing most or all of the artificial ingredients.  A lawsuit against SkinnyGirl Margarita alleges that its “All Natural” and “Contains No Preservatives” label was false and misleading due to the use of the preservative sodium benzoate.  Shortly before the complaint was filed, Whole Foods pulled the Margarita off its shelf claiming that it wasn’t “all natural.” The company claims on its website that “[t]he litigation filed in relation to the labeling of Skinnygirl Margarita is frivolous.”As Bethenny Frankel stated more provocatively, “I’m not making wheatgrass here. If I could put an agave plant and some limes on a shelf I would.  [The Skinnygirl Margarita] is as close to nature as possible, while still being a shelf stable product.” 

In addition, a class action was recently brought against Kashi, owned by Kellogg, in the Southern District court of California claiming that Kashi’s “All-Natural” GoLean bars, instant hot cereal, chewy cookies, crackers, pita crisps, waffles, and pizza are anything but that.  Plaintiffs name sodium molybdate, phytnadione, sodium selenite, magnesium phosphate, niacinamide, calcium carbonate, calcium phosphate, calcium pantothenate as ingredients that they claim have already been declared synthetic by federal regulations.  They cite the definition of synthetic under the National Organic Program as “[a]substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally occurring plant, animal, or mineral sources, except that such term shall not apply to substances created by naturally occurring biological processes.”  

Finally, ConAgra, a large Canola Oil Producer, has been sued for its use of the “100% Natural” labeling because the oil is made from genetically modified plants. 

*    *    *

The cases seem to keep on coming.  Part of the problem is that the term ”natural” is not governed by a comprehensive set of requirements.  The FTC abandoned an attempt to define “natural” in the 1980s.  The FDA’s website asks the question “What is the difference between natural and artificial ingredients? Is a naturally produced ingredient safer than an artificially manufactured ingredient? It responds with the answer of “[n]atural ingredients are derived from natural sources (e.g., soybeans and corn provide lecithin to maintain product consistency; beets provide beet powder used as food coloring). Other ingredients are not found in nature and therefore must be synthetically produced as artificial ingredients. Also, some ingredients found in nature can be manufactured artificially and produced more economically, with greater purity and more consistent quality, than their natural counterparts.”  The USDA’s website states that Natural, as applied to meat and poultry, is “[a] product containing no artificial ingredient or added color and is only minimally processed. Minimal processing means that the product was processed in a manner that does not fundamentally alter the product. The label must include a statement explaining the meaning of the term natural (such as "no artificial ingredients; minimally processed").” At least one state and some retail chains have similar policies relating to the presence of natural ingredients and minimal processing.

Given the flood of recent litigation perhaps it is the courts, and not the regulators, who will end up providing sorely needed definition.  Though one wonders whether the regulators aren’t better fit for the job. 

- Randy Shaheen and Deborah Birnbaum

UK ASA: Are You Really “Free Range”?

The UK’s advertising watchdog, the Advertising Standards Authority (ASA), banned a TV advert by Tesco Stores Ltd promoting its own-brand “Butcher’s Choice” sausages.  The ad featured pigs roaming in a field, in a hay barn and walking with a farmer down a lane.  Members of the public complained that the pastoral-like depiction of the pigs was misleading because the sausages were sourced from pigs that were bred and reared indoors.  Tesco, the UK’s largest retailer, defended the ad saying that, although the meat used for the sausages came from pigs that were “finished” indoors, some of them were born outdoors; the farm shown in the ad was a supplier for the sausages, and both indoor and outdoor bred pigs were reared to proper standards of husbandry and animal welfare. The ASA was not persuaded. It noted that in all scenes in the ad the pigs were shown to be in a spacious and free environment, wandering around freely. This, it found, would mislead consumers into thinking Butcher’s Choice sausages were made from pigs allowed unrestricted movement and access to outdoor pastures, which was not the case.  

The ASA is clearly attuned to the fact that the rearing conditions of the animals from which meat, dairy and egg products come from is a factor in the purchasing decisions of many UK consumers. Though the sausages were not marketed as ‘free range’ products, the ad portrayed pigs in a traditional farming setting that belied the more confined conditions the pigs were actually reared in. Advertisers should take care not to suggest (even if only through background imagery) that animals are reared in better conditions than is the case, as this may be deemed to mislead consumers. 

- Richard Dickinson

Made in USA: President Obama and the FTC Chairman Need to Have a Beer Summit

With all of the economic turmoil, there’s been a lot of talk lately about creating more American jobs.  Ford has attracted a lot of buzz with an ad featuring an impromptu “press conference” where a real Ford Truck owner was asked whether buying American was important to him which he  turns into a statement that he purchased a Ford because they didn’t accept bailout funds.

Last Friday, President Obama signed the America Invents Act which reforms and speeds up the patent process. During the President’s signing speech, he also pushed his jobs creation proposals, which he said would help guarantee that there were American jobs to build newly patented products. Specifically, the President said:

We need to continue to provide incentives and support to make sure the next generation of manufacturing takes root not in China or in Europe, but right here in the United States -- because it’s not enough to invent things here; our workers should also be building the products that are stamped with three proud words: Made in America.

It seems the President needs to invite his FTC Chairman over to the White House for a beer summit.  Although, in our experience, the President is not alone in making this mistake (the Ford commercial above may have made it as well), “Made in America” (or “Made in USA”) does not mean, as the President suggests, that a product was manufactured in the United States, but rather that “all or virtually all” of the product is made in the United States.  “All or virtually all” is in turn defined as "all significant parts and processing that go into the product must be of US origin. That is, the product should contain no — or negligible — foreign content.”  So it’s not enough that the product simply be manufactured in the United States, all or most of its parts and processing must have been made in the United States (and California has its own standard that is arguably even stricter). This is not always an easy standard to meet in today’s global economy, particularly given the fact that foreign parts are sometimes cheaper (or the only source available).  We’ve always wondered whether the FTC’s definition reflects more policy than consumer interpretation.  We’re not economists, but one has to wonder whether such a strict standard does more harm than good in terms of US jobs, especially when companies can’t apply the same exemption for natural resources not available domestically to parts that are no longer available from US suppliers.  And, from a consumer interpretation standpoint, if the POTUS doesn’t understand what the term should mean, it’s no wonder domestic manufacturers get confused as well. 

Of course, the FTC’s Made in USA guides allow companies to make qualified claims.  Let’s try that out in the President’s speech: "[B]ecause it’s not enough to invent things here; our workers should also be building the products that are stamped with eight proud words: Made in USA of US and imported parts."

Need we say more?  Maybe it’s time for some change we can believe in. 

- Randy Shaheen

UK ASA: 18-24 Year Olds - Legal to Drink, Not to Advertise

Last week, the UK’s advertising watchdog, the Advertising Standards Authority (ASA) banned three YouTube ads promoting the ‘unspillable’ nature of Cell Drink for breaching the UK’s rules on responsible advertising of alcoholic beverages. One of the videos featured champion free-runner Tim Shieff jumping around and over buildings, performing back-flips and breakdancing without spilling the Cell Drink he was holding. The other two ads featured ‘test subjects’, one a ‘rocker’ and the other a ‘raver’, shown to spill most of their usual drinks as they moved to music; on-screen text at the end featured Cell Drink and stated “Made for dancefloors. Zero spillage.”

Complaints were made that the ads were irresponsible towards under-age viewers. Cell Drinks responded noting that the product was designed to be not only spill-proof but also “spike-proof”, and was flexibly packaged to help avoid violent incidents in nightclubs. Cell Drinks also claimed that the ad’s focus was on the comparative ‘spillability’ of drinks and those appearing in the ads were not shown drinking. At the time of the ad, Tim Shieff was 23 and the ‘raver’ was 24, so over the UK’s legal drinking age of 18, but one issue raised by the complaints was that alcohol advertising in the UK must not show under-25s drinking or in prominent roles. The ASA was not swayed by Cell Drink’s arguments and banned the ads, noting the various features which made them particularly appealing to under-18s, including the hip hop sound track, extensive scenes of free-running, and the humorous, mischievous aspects of the ‘scientific’ testing of the rocker and raver’s spills.

Moral: Advertisers in the UK should take particular care with promotional campaigns for alcohol beverages targeting the younger end of the market: what appeals to 18-25 year olds will often inevitably appeal to under-18s also, which can amount to a breach of advertising rules. The ASA was not moved by Cell Drinks’ safe drinking ethos or by the fact that the under-25s featured were only holding, rather than consuming, alcoholic drinks.

- Richard Dickinson

UK ASA: Thou Shalt Not Airbrush

In two adjudications that have attracted much media attention (here and here), the UK’s Advertising Standards Authority (ASA) has banned two magazine ads for foundation makeup for using digitally altered pictures.

One of the ads, promoting Lancôme’s Teint Miracle foundation, featured a photo of Julia Roberts and said that “instantly complexion appears naturally bare, beautifully flawless and luminous”. The other ad promoted Maybelline’s The Eraser and featured an image of Christy Turlington with the foundation applied to part of her face only, so as to show the effects of the product; small print stated that the image was an “illustrated effect”. A British Member of Parliament complained saying she believed the images had been digitally manipulated. Brand owner L’Oreal (UK) Ltd defended the ads, saying that Julia Roberts’ skin looked flawless in the Lancôme picture due to a combination of her naturally healthy skin, flattering photography by Mario Testino and the application of Teint Miracle. L’Oreal noted that although Christy Turlington’s photo in the Maybelline ad had been digitally retouched, fine lines, crow’s feet, expression lines and pores were still visible even on areas where The Eraser had been applied. The ASA acknowledged that both Christy Turlington and Julia Roberts were well known for their natural beauty, and that the public would appreciate that they would have been professionally styled, made-up and photographed for the ads. However, the ASA was concerned that the effect of post-production techniques that had been applied to both photos was not clear; it could not establish whether Ms Roberts and Ms Turlington’s pictures were an accurate (as opposed to exaggerate) representation of the results that the products could achieve.

There has been growing criticism of the widespread use of “airbrushing” in pictures featuring in women’s magazines and in advertising. These decisions suggest the ASA is willing to take a fairly strict position with regards to “aspirational” pictures in cosmetic advertisements; this may be particularly the case for products such as foundation, where the concealment of imperfections is central to the promotional claims. The ASA expects that where photos have been digitally altered in post-production, it should be clear what has been touched up so that potential customers may properly evaluate the visual demonstration of the product’s results.

- Richard Dickinson

NAD: Title Sports Drink, Just Because It’s True Doesn’t Mean You Can Say It

Earlier this month the National Advertising Division of the Council of Better Business Bureaus (NAD ) recommended that the Electric Beverage Company discontinue its ad campaign comparing its Title sports drink to other competing sports drinks, including Gatorade.

Stokely-Van Camp, Inc., the maker of Gatorade, recently brought claims before NAD alleging that the Electric Beverage Company was making unsupported comparative claims. The maker of Gatorade challenged several advertising claims, including claims that Title had more electrolytes and less calories and sugars than Gatorade. They also challenged advertisements that implied that Title allowed players to heal more quickly and that the colorants in Gatorade are harmful.

In response to Gatorade’s challenge, the Electric Beverage Company voluntarily removed or modified some of its claims, including discontinuing the advertisements suggesting that the colorants in Gatorade are harmful and the Terrell Owens commercial implying that Title is why “I play hurt when others sit.”

However, the NAD also found that Title’s claims that its product had five times more magnesium and potassium” than Gatorade and that it has “twice the electrolytes” of Gatorade, while perhaps literally true, implied a superior performance benefit. NAD recommended that Title make only “monadic” claims (e.g. “___ amount of potassium and magnesium”). The NAD’s decision in this case serves as a good reminder that when it comes to advertising claims “truth” is not always a defense.

- Randy Shaheen and Jocelyn Wiesner

CARU Says Never to Justin Bieber Commercial

The Better Business Bureau’s Children’s Advertising Review Unit (CARU) recently recommended that Paramount Pictures discontinue the use of a commercial for Justin Bieber’s autobiographical film Justin Bieber: Never Say Never (which reportedly only covers 20l0, not all 17 years of his life). The decision highlights that CARU will focus primarily on whether it believes an ad message is misleading to a young audience and will not necessarily take into account factors such as whether the ad has been discontinued, was in limited circulation, and was conveyed only in a single ad of a much larger ad campaign.

The commercial at issue features a movie theater full of Bieber fans who are about to see an advanced screening of the film, “or so they think,” hints the commercial’s announcer. “What they don’t know,” is that Bieber is pulling “the ultimate prank”. As the movie begins, Bieber bursts through the screen—in person—to the shrieks and squeals of fans (just shout whenever, and he’ll be there?). The ad touts that the movie is in 3D and fans "have never experienced him quite like this," with Justin gushing, "I have the greatest fans in the world. I hope you enjoy this movie about my life and my journey." The commercial ends with the announcer pondering that the audience is probably “okay” with being “pranked,” and Bieber himself chimes in: “This could happen in your theater.”

CARU did not think it could. The problem, in the view of CARU, is that the commercial, would reasonably give the (wrong) impression that Bieber “would make live appearances at movie theaters where the commercial aired.” The claim was literally true—he did in fact make a few live appearances in Los Angeles (here and here) — but CARU believed the ad implied that fans outside of LA could reasonably hope for a similar sighting of their idol. CARU found the net impression of the ad to be misleading to its intended audience, the impressionable tween and teen girls who make Justin Bieber so popular. Even though this ad only aired for 12 days and represented less than 1% of the hefty ad spend for the film ads (which otherwise did not offer the potential for a live Bieber visit), CARU recommended Paramount not promise again that "this could happen in your theater.” As always when it reviews children’s advertising, CARU considered children’s “special vulnerabilities such as inexperience, immaturity, and lack of cognitive skills needed to evaluate the credibility of advertising.”

While it is true that ravid Beliebers might not have reason or judgment when it comes to their idol’s search for somebody to love . . . one less lonely girl, his fans would probably attend his concert film without the chance to actually meet him, so this short run ad probably had no material effect on them. For its part, Paramount disagreed with CARU’s opinion that the commercial was misleading to children, but it nonetheless agreed not to reUp the ad.

- Any Mudge and Tom McSorley

Things Are Heating Up in the Sunscreen Legal World

The Consumer Advertising Law Blog wishes all of our US readers a happy Independence Day. As you look forward to a long weekend with family grilling, at parades or waiting for fireworks, we also wanted to remind you not to forget your high SPF sunscreen. And for those reading our blog this weekend using our mobile app, things are heating up in the sunscreen legal world and we wanted to share some timely developments.

Earlier this month, the FDA announced new regulations, which will take effect in 2012, governing how sunscreen manufacturers label and advertise their products to consumers. Janet Woodcock, from the FDA’s CDER, described the benefits for consumers, “These changes will help people make better-informed decisions about how to use sunscreens and allow them to more effectively protect themselves and their families.” Some of the key changes in the new regulations include:

• A standard test for over-the-counter sunscreen to determine whether products can be labeled as “Broad Spectrum,” a label indicating that the product protects against both ultraviolet A (UVA) and ultraviolet B (UVB) rays
• A proposed regulation that would limit the maximum label on sunscreen products to SPF 50+, because the FDA lacks data demonstrating that products with values higher than 50 provide any additional protection
• A regulation prohibiting manufacturers from labeling their products as “waterproof” or “sweatproof” or “sunblock”
• Water resistance claims on the product’s front label must inform consumers how much time they can expect to get the declared SPF level of protection, with permissible durations of 40 or 80 minutes

The FDA is also issuing draft guidance to help sunscreen manufacturers understand the final and proposed regulations and to assist them in properly labeling and testing their products.

In related news, a Delaware federal district court declined to enter a permanent injunction in a Lanham Act false advertising case involving two sunscreen manufacturers. Schering-Plough, the plaintiff, and manufacturer of Coppertone sunscreen, brought claims for false advertising against Neutrogena. Schering-Plough alleged that Neutrogena’s print advertising and packaging for its Ultra Sheer Dry-Touch Sunblock SPF 100+ product falsely claimed that the product contained helioplex, a photo-stabilizing agent. In May, the district court granted partial summary judgment for Schering-Plough, on the basis that lots of defendant’s product shipped in 2009 and 2010 did not contain DEHN, a component of helioplex. Thus, the claim “with helioplex” misrepresented the qualities of the sunscreen and therefore was literally false.

State AGs Go After Mad Men for Advertising Misrepresentations

Ten state attorneys general recently reached settled with an ad agency over allegations that the firm’s ads misrepresented the origins of cars sold during used car dealers’ sales events. According to the complaint, ads created by Action Integrated Marketing led to misperceptions regard the origins of the advertised vehicles. For instance, some ads included terms such as “The Repo Joe Sale” and “Government Vehicle Disposal,” even though the vehicles sold at these events were allegedly from the dealers’ regular inventory. In addition, the attorneys general asserted that the ads fostered a false sense of urgency regarding the length of the sale, and did not adequately disclose vehicle prices, including all mandatory fees and credit terms. Under the terms of the settlement, Action Integrated Marketing agreed to pay a $150,000 fine to the participating states and restrict its future marketing practices.

What is particularly interesting about this complaint and settlement is that it only appears to involve the ad agency who created the ads and not the auto dealers. Going after the Mad Men instead of the manufacturers behind the ads is a relatively rare occurrence, but not unprecedented. The FTC has taken the position that ad agencies may be held liable for misleading claims in ads where the agency actively participated in the creation of the ad at issue and knew or reasonably should have known the claim was false. See here and here. The FTC has asserted it believes advertising agencies and media outlets have a duty to make an independent check on the information used to substantiate ad claims. The FTC has published guidelines for third parties to spot certain types of prevalent deceptive claims such as here and here.

The states apparently agree that liability can extend beyond the seller, and during a time when many enforcement dollars (or in some states exclusive enforcement dollars) from the consumer protection budgets are being spend to focus on financial fraud and deception, ad agencies, as well as marketers, would do well to pay particular attention to substantiation for any ads promising a deal of a lifetime.

- Amy Mudge and Brian Feinstein

UK: Advertising Regulator Taking The Puff Out Of Puffery When It Comes To Unsubstantiated Health Claims

Last week the UK’s advertising regulator, the Advertising Standards Agency (ASA), banned four ads making health benefit claims that were not adequately supported by ‘robust’ scientific evidence and were deemed to be misleading.

• First, the ASA found that claims concerning Lifes2good’s hair supplement “Viviscal”, to help “thin, wispy hair” by providing the nutrients needed for actively growing hair, could not be substantiated.
• It then banned the ad promoting Airogym’s exercise cushion, said to be “clinically proven to increase blood flow through the veins by up to 5 times” and to help diabetic circulation, dialysis treatment and reduce the risk of deep vein thrombosis (DVT), as the ASA held the results of clinical trials and a physiological study were not meaningful.
• Next up, on review by the ASA, alternative therapy provider Cha-Zen did not attempt to substantiate the claims in its ad that, after one therapy session, clients would be physically stronger, feel balanced emotionally and experience a clear mind.
• And finally, claims by the Water Ionizer Company in respect of its water treatment device, said to produce ionised water with anti-aging properties, were held by the ASA to be supported by evidence that was sketchy, lacking sufficient detail about the studies’ methodology or results.

In sum, where products or treatments are purported to offer health benefits, the ASA will not treat advertising 'puffery' any differently from other claims: strong assertions require strong supporting evidence. All four decisions reinforce this underlying requirement. Advertisers should be careful not to present unproven or fanciful health benefits as fact.

- Richard Dickinson