Kelley Drye

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That the FTC has announced another weight loss settlement is no news at all.  The FTC averages about six new weight loss orders per year.  The new settlement, nevertheless, is notable as a reminder of the following points.

The FTC has the power to impose bans.  The Order against the marketers of Double Shot diet pills “permanently restrain[s] and enjoin[s]” them from advertising or selling “any weight-loss product.”  The FTC does not frequently impose bans in weight loss cases, but bans have been used before in similar instances where extreme Gut Check claims (discussed below) have been made. 

Any FTC orders requiring “competent and reliable scientific evidence” will likely now include record-keeping provisions for clinical studies.  For any future health-related claims – other than weight loss claims – the Order requires the Double Shot marketers to possess “competent and reliable scientific evidence.”  The Order further requires the parties to obtain or maintain data and other records from any clinical study relied upon for claims.  A narrow exception is made only for certain “reliably reported” studies that were conducted independently of the parties.  This is the third FTC order to include such record-keeping provisions.  We discussed the first two orders here and here.
Continue Reading The FTC Has Announced a Weight Loss Settlement … But Wait, Keep Reading

Social media is a powerful marketing tool. It’s personal, dynamic, and reaches an unlimited number of consumers. But, the value of social media can be tempered by the legal risks. Both the Federal Trade Commission and the Food and Drug Administration have been paying close attention to social media activities by dietary supplement companies and…

On May 28, 2014, the FTC announced a settlement with the company that sells Lice Shield shampoos, leave-in sprays, and products to be applied to head gear.  In the FTC’s view, the company did not possess adequate substantiation for claims that the products will prevent or reduce the risk of head lice.  Without admitting any …

Two more food companies have reached settlements over “natural” claims. In a class action suit against Popchips, Inc., plaintiffs alleged that the maker of Popchips snacks misled consumers by labeling and promoting its product as “natural” when it contained artificial and synthetic ingredients. Popchips denies the allegations, but agreed to establish a $2.4 million fund …

Compared to conventional foods, which have been barraged with class action suits over “natural” claims, dietary supplements have not been hard hit.  Late last month, however, a plaintiff filed suit against Hammer Nutrition, Ltd. over “natural” claims and other claims used to promote two of the company’s dietary supplements.

The plaintiff filed suit in federal court in New York challenging claims used to promote Appestat, a weight loss product, and Perpetuem, a powder that Hammer Nutrition describes as “endurance fuel for long distances.”  The plaintiff argues in his complaint that “all natural” claims for both products are deceptive given the presence of ingredients such as magnesium stearate, zinc monomethionine, and chromium polynicotinate.  The plaintiff further argues that the Appestat labeling and advertising is deceptive in that it fails to disclose the presence of caffeine and promotes garcinia cambogia as safe and effective for weight loss and appetite suppression.  The plaintiff seeks to create a class of New York consumers and alleges that the products’ advertising and labeling violate New York consumer protection statutes and common law.   …

Continue Reading “Natural” Class Action Against Dietary Supplements

As we reported previously, the FTC, in September, announced settlements with two car dealerships over price advertising alleged to be deceptive.  At that time, the FTC noted that the two settlements were “part of [a] continuing crackdown on deceptive motor vehicle dealer practices.”  Boy, were they not kidding.  On Thursday, the FTC announced settlements with …

The FTC earlier this week announced settlements with two companies that sold “genetically customized” dietary supplements and skin serums through multilevel marketing.  According to the FTC, distributors sent potential customers free at-home genetic tests, and based on testing results, the companies recommended specific products from their offerings.  The companies’ marketing materials – according to the …

The onslaught of consumer class actions against advertisers continues with Apple’s marketing of certain “Season Passes” on iTunes being challenged. Noam Lazebnik, an Ohio physician, filed a complaint on behalf of consumers who purchased an iTunes Season Pass last year for Season 5 of the AMC series, Breaking Bad. According to the plaintiff, Apple marketed…

Marketers of natural personal care products will want to take note of a recent nationwide settlement over marketing and advertising for Neutrogena Naturals. Plaintiffs filed suit in the Northern District of California in January of 2012. They alleged that product labels and website advertising for Neutrogena Naturals facial cleansers, body washes, and moisturizers violated California…