The National Advertising Review Board (“NARB”) recently upheld an NAD decision regarding Goya Foods, Inc.’s claim, “La Pasta Favorita de Puerto Rico” or “Puerto Rico’s Favorite Pasta,” finding that the claim was not puffery and that it required substantiation. As we summarized here, NAD previously determined that use of the term “favorite”

The FDA and FTC jointly issued warning letters to three companies selling CBD products online.  The letters allege violations of the Federal Food, Drug, and Cosmetic Act (“FDCA”) and the Federal Trade Commission Act (“FTCA”).  Although this is the first time the FDA and FTC have issued joint warning letters relating to CBD, the FDA

As part of its routine monitoring, the NAD requested substantiation for various statements that a BuzzFeed staff member had made about a moisturizer in one of the site’s shopping guides. The NAD’s decision in the case sheds some much-needed light on various issues related to affiliate marketing.

BuzzFeed explained that the shopping guides include product

Advertisers who want to tout the comparative advantages of their products have a number of options for framing those comparisons. For example, they can compare their products to specific products, they can compare their products to defined categories of products, or they can more vaguely compare their products to “regular,” “ordinary,” or “other” products. Although

The NAD recently analyzed whether Petmate had adequate substantiation to support claims that certain cat litter pans had “built-in antimicrobial protection” and that they could “inhibit bacteria growth.” Although the decision is most directly relevant to companies that make antimicrobial claims, it also contains information that’s relevant to any company that uses tests to substantiate

Florida attorney general Pam Bondi filed a complaint last week against Icebox Cafe, L.C. alleging that the restaurant violated Florida’s Deceptive and Unfair Trade Practices Act by making misleading claims that its food products were “locally-sourced” and “sustainable.”  The defendant operates a self-proclaimed “farm-to-table” restaurant in Miami Beach, along with select locations at airports.

According

The Grim Reaper, a mummy, a mad scientist, and a werewolf are riding together on a train after work. No, that’s not the start of a joke, but it is the start of a funny commercial for Spectrum TV. The four characters talk about their weekend plans, as a light rain pelts the train’s windows.

The decision in Kwan v. Sanmedica International, 854 F.3d 1088 (9th Cir. 2017) in April, has occasioned a lot of discussion about the apparent demise of the establishment claim “standard” in California.  What the Kwan decision should have done, but did not, is provoke some hard thinking about what this “standard” is and how we use it.  From the Kwan decision, it is apparent that the Ninth Circuit does not understand where the establishment claim principle came from and what it means.  But its error is understandable, because attorneys and judges have been careless with the principle and arguably have made much more of it than it should be.                                                                                                                                             

Kwan has been accepted as standing for two propositions.  The first, which should be non-controversial and unsurprising, is that in private suits brought under California’s Unfair Competition Law (UCL) and Consumer Legal Remedies Act (CLRA), a plaintiff must allege and ultimately prove that the offending advertising claim is false, not merely unsubstantiated.  There has been no serious dispute about this since the California Court of Appeal (Second District) decision in National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc., 107 Cal. App. 4th 1336, 133 Cal. Rptr. 2d 207 (2003).  What made Kwan news was that the court also rejected plaintiff’s allegations that defendant’s dietary supplements were “clinically tested to boost [human growth hormone] by a mean of 682%,” is provably false, and in so doing refused to “incorporate Lanham Act provisions into California’s unfair competition and consumer protection law by distinguishing between ‘establishment’ and ‘non-establishment’ claims.”  854 F.3d at 1097.   
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In its first case challenging “organic” claims, the FTC announced a settlement with Moonlight Slumber, LLC  resolving charges that the company misrepresented or could not support a variety of environmental and health-related claims about its baby mattresses.

Misleading and Unsubstantiated Claims. The FTC’s complaint asserts that Moonlight advertised its baby mattresses as “organic,” “natural,” “hypoallergenic,” and “eco-friendly.” Moonlight also indicated that the mattresses were made with “BabySafe Natural Materials” and “eco-friendly plant-based foam.” According to the FTC, the company’s products were made of a majority of non-organic materials. For instance, the cores and fire barriers of the company’s Starlight Simplicity and Little Star mattresses did not contain any organic material, and 70% of the cotton cover of these mattresses was non-organic material. The Little Star mattress core was made of a synthetic latex material, rather than the “natural latex” the company advertised, and for both the Starlight Simplicity and Little Star mattresses, only the mattress ribbon itself contained solely organic materials. According to the FTC, most of the company’s mattresses were made of polyurethane, either wholly or substantially, and the foams in these mattresses were comprised of “little or no plant-based material.”


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