Court Holds Disclaimer/Disclosures Prevented False Advertising in Consumer Class Action

Polsky v. Dish Network Service

Allegation: Dish advertised that consumers could watch "commercial free televisior' via its "Hopper"

Allegation: Claim was false and deceptive because the feature was only available on select networks and only the day after they were recorded

Holdings:

  • Advertising included references to the Hopper's limitations, stated that restrictions applied and told customers to contact Dish for more details
  • Dish did not try to "dupe" consumers and therefore have no liability

Another Class Action Filed Against “List”/“Sale” Prices in Outlet Stores

Courtney Dennis v. The Gymboree Corp.

Allegation

  • Defendants would compare the "sale" prices to false "market" prices, which were misrepresented as the "marker retail prices from which the "savings" was discounted
  • The advertised discounts were artificially inflated and were never the original prices for products sold by the defendant's at their outlet store
  • The represented "market" prices were not the prevailing marketing retail prices within three months next immediately preceding the publication of the advertised former prices, as required by California law

CA Court Holds Use of “Guaranteed” Means “Repair,” “Replace,” or “Refund” — Not a Promise the Product Won’t Break

Punian v. The Gillette Co. and The Procter & Gamble Co.

Allegation: Duracell advertised its batteries as "GUARANTEED for 10 years in storage"

Allegation: Claim was false and deceptive because the batteries had the potential to leak

Holdings:

  • Use of "Guaranteed" under CA law is an "express warranty" requiring a repair, replace, or refund, not a promise the product won't leak
  • True even though didn't say "money back" before "guarantee"
  • "Always have access to power when you need it" was deemed to be puffery Company not liable for unreasonable misinterpretation 
  • Company not liable for unreasonable misinterpretation

NAD Reviews Location-Based Ad Claims

In re General Mills (#5940)

Advertising Claim #1"Vineland, NJ, Home of Progresso"

HoldingConsumers are likely to associate Progresso's home with its place of origin, and the community in which it has a dominant presence, rather than the message that its centralized business functions are located in Vineland (which are not)

Advertising Claim #2"Vineland, NJ ... where Progresso Light soups are made"

Holding: Without evidence establishing that all or almost all of Progresso Light soups are made in Vineland, the NAD determined that the unqualified claim that "Vineland, NJ .. where Progresso Light soups are made" was unsupported and recommended that it be discontinued


NAD Reviews Implied Ad Claim

In re General Mills (#5940)

Implied Advertising Claim #1: "All or most Progresso ingredients are sourced locally in Vineland!'

Holding: Spot opens with "Vineland, NJ and 'Home of Progresso" with farm imagery and "since we can't bring you the entire farm, the least we can do is bring you the best, tastiest vegetables," Conveys the message that the farm was one of many local farms in Vineland that supplies Progresso, which was not the case

Implied Advertising Claim #2: "Progresso is a small company based in rural South Jersey"

Holding: Although farm imagery and a home kitchen are featured in the commercials, reasonable consumers would not take away a "small company" message