NAD Reviews Superiority and “Scientifically Proven” Ad Claims

In re Mars Inc. (#5980)

Claim #1:

  • “CocoaVia daily cocoa extract supplement delivers the highest concentration of cocoa flavanols”

Holding:

  • The superiority claim applies to all competitive products on the market, not just those shown/mentioned in the advertisement
  • Difficulty in assessing all products didn’t remove obligation to test all products

Claim #2:

  • “Scientifically proven to promote a healthy heart by supporting healthy blood flow”

Holding:

  • “Scientifically proven” should be replaced with “studies indicate,” given that the substantiation was only an unpublished study, with abstracts and informal summaries, which wasn’t enough to support such a strong claim

 

NAD Review “Ingredient” Ad Claims

In re French’s Food Company (#5984)

Claim #1:

  • “FREE from High Fructose Corn Syrup” (in bold red letters) and directly below appears the language, “TASTE THE DIFFERENCE!”

Holding:

  • Given the proximity of the two phrases, French’s was claiming that its ketchup tastes discernibly better than its competitor due to the absence of high fructose corn syrup, which was unsupported

Claim #2:

  • “We promise real ingredients” and “French’s: only real ingredients”

Holding:

  • In the comparative advertisement, French’s was claiming that Heinz Original Ketchup (which contains high fructose corn syrup) is “not real” or is artificial, which was unsupported

 

Court Reviews Lawsuit Against Industry Blogger/Influencer

Casper Sleep v. Jack Mitcham and Mattress Nerd LLC

Factual Allegations:

  • Mattress blogger had affiliate/influencer relationship with the plaintiff and other mattress companies
  • When the relationship terminated, the plaintiff alleged the blogger continued to imply a relationship, as well as implied independence, therefore, allegedly damaging the plaintiff when its products weren’t “preferred” by blogger

Holding:

  • A private plaintiff can rely on a violation of FTC guidelines as a basis for false advertising under the Lanham Act
  • The Lanham Act can cover cases against a blogger/influencer—doesn’t only cover claims against competitors
  • Blogger/influencer stating he had a relationship with plaintiff, when his blog recommended another’s product, could cause cognizable damage

 

FTC Changes the Way Manufacturers and Retailers Can Provide Warranty Terms

16 CFR Parts 701 and 702

Background:

  • Magnuson-Moss Warranty Act previously required warranty disclosure:
    • In close proximity to a sale
    • Furnishing upon request with prominent sign at point of sale
    • Printing them in a catalog in close conjunction to the warranted product
    • Available for review in door-to-door sales presentations

Change:

  • Allows warranty terms on website if a non-Internet based method for consumers to obtain the warranty is provided
  • Disclosures statutorily mandated to appear “on the face of the warranty” must be placed in close proximity to the location where the text of the warranty terms begins

 

Court Rejects Lindsay Lohan’s Right of Publicity Claim

Lindsay Lohan v. Take-Two Interactive

Factual Allegations:

  • Lohan’s likeness was used in two pieces of still artwork and a video game character in “Grand Theft Auto V”
  • Take-Two purposefully used Lohan’s bikini, shoulder-length blonde hair, jewelry, cell phone, and “signature ‘peace sign’ pose”
  • Take-Two denied Lohan inspired or resembled these characters other than being young, blond, and female

Holding:

  • Take-Two did not use Lohan’s name, portrait, or picture; never referred to Lohan by name; and never used a photograph of Lohan
  • The game is protected as fiction or satire
  • The advertising use, while not fiction or satire, is incidental or ancillary to the permitted use