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Category Archives: Advertising

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Reading the Tea Leaves: Sales of Macadamia Nuts Could Be Going Up!

Posted in Advertising, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage

On July 24, 2017, the Food and Drug Administration announced that it had responded to a November 2015 petition from Royal Hawaiian Macadamia Nut, Inc. for a new qualified health claim characterizing the relationship between macadamia nut consumption and a reduced risk of coronary heart disease (CHD).

The Turn of the “Made in America” Claim Enforcement

Posted in Advertising, Consumer Product Safety, Federal Regulations, Federal Trade Commission (FTC), Importer Safety, Manufacturer Product Safety, Private Labeler Product Safety

It has recently been reported that President Donald Trump is looking for ways to defend American-made products by certifying legitimate U.S. goods and aggressively going after imported products unfairly sporting the “Made in America” label, the White House said on July 18, 2017. President Trump announced that his administration would crack down on “predatory online… Continue Reading

Reexamination of “Healthy” Continues with an FDA Public Meeting in March 2017

Posted in Advertising, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Product Class Actions

As we’ve previously reported, FDA has signaled its interest in reviewing the scope and meaning of the nutrient content claim “healthy,” in part as result of a dispute with KIND LLC about label claims for its KIND Bar products. Then last fall FDA released a new guidance document on what constitutes a “healthy” food and proper labeling of… Continue Reading

False Labeling Lawsuits Get Hung Up On Faulty Damages Models

Posted in Advertising, Federal Regulations, Food and Beverage, Litigation, Product Class Actions

Some of our colleagues from Mintz Levin’s Class Action Practice, Joshua Briones, Crystal Lopez, and Grace Rosales, recently authored an interesting and timely article in the Bloomberg BNA Product Safety & Liability Reporter. The article examines certain defenses in consumer fraud class actions over product labeling – specifically, defenses based on faulty damages models. Beyond proving the… Continue Reading

FTC Issues Long-Awaited Enforcement Policy on OTC Homeopathic Drugs

Posted in Advertising, Children's Products, Consumer Product Safety, Drugs & Cosmetics, Federal Regulations, Federal Trade Commission (FTC), Manufacturer Product Safety, Product Liability

We reported a few weeks ago about a new warning from FDA related to the safety of certain teething-related, non-prescription homeopathic drug products, and in that post we mentioned that both FDA and the Federal Trade Commission (FTC) held public workshops in 2015 to gather information about this uniquely-regulated class of consumer products.  Today, FTC released… Continue Reading

Stuck in the Middle with the FTC

Posted in Advertising, Federal Regulations, Federal Trade Commission (FTC), Litigation, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

“…Clowns to the right of me, jokers to the left, here I am…” -Stealers Wheel (1972) Legal actions regarding “Made in the USA” claims, whether prosecuted by the Federal Trade Commission (FTC) or through various state unfair trade practices acts, often settle early in the proceedings.  For example, in 2014, the FTC issued 16 “closing… Continue Reading

FDA Finally Decides that “Evaporated Cane Juice” Is Misleading Consumers

Posted in Advertising, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage

Evaporated cane juice, a term usually used to inform about sweeteners derived from the fluid extract of sugar cane, is present on the ingredient lists of many products we see on grocery store shelves. However, newly finalized FDA guidance on use of the term “evaporated cane juice” (“ECJ”) as an ingredient in food labels may… Continue Reading

California Plaintiffs Say that Size Matters: Consumer Fraud Class Action Challenges Slack-Fill in Protein Products

Posted in Advertising, Consumer Product Safety, Drugs & Cosmetics, Food and Beverage, Litigation, Manufacturer Product Safety, Private Labeler Product Safety

According to named plaintiffs in a consumer fraud action filed in December in the Southern District of California, size matters when making it comes to making a purchase.  In fact, Plaintiffs claim that the average consumer’s purchasing decision is “heavily dependent” on the size of the package. Plaintiffs have sued Defendant MusclePharm for “intentionally packaging its… Continue Reading

“Multi-Agency Interactive Tool” Available for Developers of Health Apps

Posted in Advertising, Federal Regulations, Federal Trade Commission (FTC), Food & Drug Administration (FDA)

It seems as though 2016 may become the year that industry receives a plethora of helpful interactive portals from Federal Agencies.  My colleague Matt Cohen recently reported on the existence of a new CPSC tool called The Regulatory Robot that’s helping businesses identify the product safety rules that might apply to a new product.  This week, the Federal Trade Commission (FTC) — in conjunction with the Food… Continue Reading

National Retailer Settles FTC Native Advertising Complaint

Posted in Advertising, Federal Regulations, Federal Trade Commission (FTC)

The potential pitfalls of native advertising were on display this month at the Federal Trade Commission (FTC). The agency reported that national retailer Lord & Taylor settled with it on charges that the company improperly paid for native advertisements. Lord & Taylor allegedly did not disclose that an article in the online publication Nylon, as well as a Nylon… Continue Reading

Lawsuits Against The Honest Company Highlight Continued Risks of “All Natural” Labeling

Posted in Advertising, Litigation, Product Class Actions, State Consumer Protection Laws

Allegations are increasing against The Honest Company, Inc. for false and misleading marketing of its products as “all natural” and “plant-based” when they supposedly contain synthetic ingredients.  The Honest Company sells personal care, cleaning, and baby products in multiple channels including at retail, online and through consumer subscriptions.  The company was co-founded by the actress Jessica Alba… Continue Reading

Another California Dismissal of Proposed Class Action Regarding Disclosure of Forced Labor in the Supply Chain

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

We recently blogged about a new wave of class action litigation related to California’s Transparency in Supply Chains Act.  In December, Nestlé USA won the dismissal of a complaint against it alleging that the company was “obligated to inform consumers that some proportion of its cat food products may include seafood which was sourced from… Continue Reading

Reminder – Truthful Advertising Is Not Optional

Posted in Advertising, Federal Regulations, Federal Trade Commission (FTC)

We blog frequently about new regulatory developments coming from CPSC or FDA and about enforcement actions brought by those federal agencies as well as state counterparts and private plaintiffs.  But we don’t very often discuss actions involving the Federal Trade Commission (FTC) and its enforcement of the FTC Act’s broad prohibition on unfair or deceptive… Continue Reading

Knockout in Round One: Court Dismisses California Supply Chains Act Class Action

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws, Supply Chain Risk Management

The first round goes to the industry: on December 9, 2015, the Central District of California dismissed the complaint in Barber v. Nestle USA, a key bellwether case in a new wave of class action litigation related to California’s Transparency in Supply Chains Act. The Barber plaintiffs’ theory was that Nestle had violated California’s panoply… Continue Reading

What Does GMA’s SmartLabel Initiative Mean for False Advertising Litigation?

Posted in Advertising, Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws

On December 2, 2015, the Grocery Manufacturers Association announced SmartLabel, a pioneering technology initiative that gives manufacturers and retailers an important new channel for disclosing information about their products directly to consumers. Through SmartLabel, simply by searching online or scanning the bar code on a product’s label, consumers can readily access a wealth of detail… Continue Reading

Settlement Looms for “Made in USA” Jeans Suit

Posted in Advertising, Federal Regulations, Federal Trade Commission (FTC), Litigation, Product Class Actions, State Consumer Protection Laws, State Regulations, State Unfair Competition Laws

A courtroom battle concerning a manufacturer’s alleged false marketing of allegedly foreign-produced products as “Made in USA” is potentially nearing a resolution.  On November 30, 2015, the lead plaintiff in Paz v. AG Adriano Goldschmied, Inc. et al. asked the court for preliminary approval of a $4 million settlement between class members and defendants Nordstrom,… Continue Reading

What’s in a Name? When You’re Selling a Food with an Established Federal Standard of Identity, a Whole Lot!

Posted in Advertising, Food & Drug Administration (FDA), Food and Beverage

A bluntly labeled section of the Code of Federal Regulations – “Mayonnaise” – provides a description of this particular food dressing, the food’s required ingredients, optional ingredients, and how to declare those ingredients.  The goals of this and other standardized food definitions are to prevent economic fraud on consumers (and between supply chain partners), avoid… Continue Reading

California Joins rest of Country in “Made in USA” Rules

Posted in Advertising, Consumer Product Safety, Federal Regulations, Federal Trade Commission (FTC), Manufacturer Product Safety, State Regulations, State Unfair Competition Laws

California, the beacon of individualism and often marching to its own set of rules, has joined the rest of the country as Gov. Jerry Brown has signed SB 633 which revises California’s take on what constitutes “Made in USA”. Up until this week, existing California law prohibited the sale or offering for sale in the… Continue Reading

U.S. House Passes GMO Labeling Legislation

Posted in Advertising, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, Product Liability

Today the Safe and Accurate Food Labeling Act of 2015 passed the House, in a vote of 275 to 150 (more information here). Still a hot-button issue, opposition to the Act is emotionally charged, with those opposed to the bill calling it the “DARK” Act (Denying Americans the Right to Know Act). Supporters of the… Continue Reading

Onward to Trial: Federal Court Rejects Vermont’s Motion to Dismiss GMA Lawsuit

Posted in Advertising, Food and Beverage, Litigation, State Consumer Protection Laws

Despite a stiff litigation challenge from the food industry, Vermont’s GMO-labeling campaign marches on. This week saw major developments in the suit brought by the Grocery Manufacturers’ Association and other food industry groups challenging the constitutionality of Vermont’s GMO-labeling law, Act 120. Each side won an important victory in motions decided by the court, leveling the… Continue Reading

FDA Increasing Scrutiny of Cosmetic Marketing Claims, New Agency Warnings Suggest

Posted in Advertising, Food & Drug Administration (FDA)

In addition to truthful and non-misleading advertising requirements, which are enforced by the FTC and certainly familiar to readers of this blog, personal care and cosmetic products are also subject to the Federal Food, Drug, and Cosmetic Act (the Act) and may run afoul of the U.S. Food and Drug Administration (FDA or the agency)… Continue Reading

FTC Tastes “Sweet” Victory: The Implications of POM Wonderful for Government Practice

Posted in Advertising, Federal Trade Commission (FTC)

Written by: Timothy Slattery In part two of this two-part series, we explore two critical takeaways for those facing potential government intervention: (1) the implications of the Court’s deference to the Commission, and (2) whether a substantive disclaimer is a silver bullet to avoid agency scrutiny (or, at least, an agency win). A Second Quick… Continue Reading

No Representation Without Substantiation? What POM Wonderful v. FTC Means for Consumer Class Actions

Posted in Advertising, Federal Trade Commission (FTC), Litigation, Product Class Actions, State Consumer Protection Laws

In this first post of a two-part series, we take a closer look at last Friday’s decision in POM Wonderful v. FTC by the U.S. Court of Appeals for the District of Columbia, which has meaningful implications for how companies advertise their products’ health benefits to consumers. The decision bolsters the Federal Trade Commission’s position that, when a company… Continue Reading

Jobs-ed: New Class Action Pulls Apple into California’s “Food Court”

Posted in Advertising, Litigation, Product Class Actions, State Consumer Protection Laws, State Unfair Competition Laws

In our continuing efforts to highlight litigation trends that affect consumer product companies, we often focus on class actions brought in California and, especially, its federal Northern District. The Northern District of California has come to be nicknamed the “Food Court,” and with good reason: the district is a high-traffic forum for class actions targeting the… Continue Reading