Lawsuit Over "Except Where Prohibited By Law"

Pinto v. Toys "R" Us

Facts: Toys "R" Us sells gift cards, which to "not redeemable for cash, except where prohibited by law."

Allegations: The language violates the New Jersey Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA), as it fails to specify that the card is redeemable for cash under New Jersey law.


Hacky Sack Advertisement Wasn't a Right of Publicity Violation

Martin v. Living Essentials, LLC

Facts: The world record holder for the most consecutive kicks of one hacky sack sued over a 5-Hour Energy commercial, which depicted a man who claimed to have mastered origami "while beating the record for Hacky Sack."

Holding: The ad didn't identify the world record holder.

Reasoning:

  • The ad said the record for Hacky Sack," which didn't necessarily mean the "world record."
  • The ad showed the man kicking multiple hacky sacks, and the plaintiff was the world record holder of kicking one.
  • The ad identified the man as having done a number of other things other than the hack y sack record.
  • Ultmately, no reasonable person could find that the plaintiff was identified.

Court Holds App Game “Castle Clash” Not an Illegal Lottery/Gambling/Sweepstakes

Soto V. Sky Union

Facts: Game with in-app purchases of rewards (e, g,, gems), which users may use to make purchases within the game, including speeding up a player's progress.

Issue #1: The things that you can "win" (i.e., "Rare Heroes," "honor badges," "gems," or "shards") have no measurable value. They are therefore not prizes under the California statute.

Facts: Game offers players the opportunity to purchase and spend gems for the right to break open eggs containing "unpredictable treasures" that will enhance their gaming experience.

Issue #2: Requiring players to convert their money into gems to enter contests could amount to "consideration."


NAD Case Regarding Advertising Claims

In re Church and Dwight (#5919)

Ad Claim: "OxiClean White Revive is chlorine free and has 40% more whitening power than chlorine bleach."

NAD Determined: That the commercial does not reasonably convey the message of superior stain removal.

Ad Claim: "Get the tough stains out without the worry of chrorine bleach."

NAD Determined: Commercial be modified/discontinued to avoid conveying the unsupported message that chlorine bleach is damaging to white garments.


FTC Actually Brings a CAN-SPAM Action

FTC v. Sale Slash

Factual Allegations: Emails contained from, header, and subject information suggesting that the emails were sent by persons known to the recipients when, in fact, the emails were initiated and sent from Sale Slash.

Alleged Legal Violations re CAN-SPAM: Failure to: (1) give notice that consumers could opt-out; (2) provide a working opt-out mechanism: (2) provide a physical postal address of the company; (4) provide non-misleading subject line; and (5) provide non-misleading header information.

Result: In connection with all the false advertising allegations against the company, of which there were many in addition to the CAN-SPPM allegation, the company agreed to settle for more than $43 million.