In false advertising litigation news, two new suits in California federal courts challenge claims that a whiskey is “handmade” and that a supplement “supports healthy brain function.”
Maker’s Mark may tout its whiskey as “handmade” in three different places on its label, but according to the complaint filed by Safora Nowrouzi and Travis Williams, the company’s own photos and videos of its manufacturing process bely the false and misleading promotion.
According to the complaint, which alleged violations of California’s False Advertising Law and Unfair Competition Law and negligent and intentional misrepresentation, the manufacturer actually employs an automated and/or mechanized process for mixing, fermenting, distillation, and bottling of its whiskey. “Ironically, even the labeling of the bottles, which contains the alleged ‘Handmade’ statement, is achieved by a mechanized and/or automated process.”
Photos and videos from a tour of the Maker’s Mark distillery reveal “virtually no human involvement in this system, other than perhaps the pressing of a button,” the plaintiffs said, and a statement that the company uses an “old antique roller mill” to break up its grains is disproven by video footage of “electronically driven motors…controlled by a set of electronic control panels.”
The complaint seeks to certify a statewide class of consumers who “overpaid” for Maker’s Mark whiskey, asking for compensatory and punitive damages as well as injunctive relief to discontinue the “handmade” claims, disclose the mechanized process used to manufacture the whiskey, and engage in corrective advertising.
In the second suit, a San Francisco purchaser of Flintstones Healthy Brain Support Gummies sued manufacturer Bayer Healthcare over claims that the supplements improve brain function. Although the labeling for the product stated that the gummies “support healthy brain function” with the inclusion of Omega-3 DHA derived from algae, the plaintiffs allege that scientific evidence has established that DHA is no more effective than a placebo.
“[R]ather than having adequate substantiation for its brain function and brain support representations, the scientific evidence is clear that algal Omega-3 DHA supplementation does not provide brain function or brain support benefits,” Liza Gershman told the court, adding that not a single randomized, controlled clinical trial has concluded DHA provides improved cognitive function in comparison to placebo.
Gershman alleged that the supplement itself provides a “trivial and meaningless” amount of DHA to the brain, and American children and adults get sufficient DHA in their daily diet. She also noted that the Food and Drug Administration denied a request just last year to recognize a daily requirement for DHA.
Because the “only ingredient in the product represented as providing brain support or function is the DHA,” in Bayer’s nationwide marketing campaign, underway since August 2013, the defendant’s representations are “false, misleading, and reasonably likely to deceive the public,” the complaint stated.
In addition to restitution and disgorgement for nationwide and statewide classes, Gershman requested that the court halt the challenged advertising and order Bayer to launch a corrective advertising campaign.
To read the complaint in Nowrouzi v. Maker’s Mark Distillery, Inc., click here.
To read the complaint in Gershman v. Bayer Healthcare, LLC, click here.
Why it matters: The new lawsuits demonstrate that plaintiffs can – and will – base a false advertising suit on any and all claims made by advertisers.