Recent false advertising lawsuits run the gamut from sweaty Bose headphones to pasta sauce with preservatives to a battle between energy drink companies.
In Massachusetts federal court, six plaintiffs hit Bose Corporation with a 91-page complaint accusing the company of duping consumers by marketing its headphones as sweat-, weather- and water-resistant. Bose featured images of “sweat-drenched athletes wearing the [h]eadphones while exercising in its promotional materials” and used the tagline “Sweating it out in the gym or running through the rain, these are sport earphones built to keep you going every step of the way.”
In reality, the headphones are not resistant to any moisture, and exposure to sweat, rain and water depletes their battery life, the plaintiffs alleged. Each averred that he or she would not have paid the $150–$250 for headphones that fail to hold a charge for the advertised time and don’t live up to claims that the product isn’t “afraid of sweat or rain.”
The complaint seeks damages and equitable relief on behalf of a nationwide class.
Across the country, Mark Flolo sued Cucina & Amore Inc. after purchasing a 7.9 oz. container of the company’s Sundried Tomato Pesto Sauce. He relied on the product label’s statement that it contained “No Preservatives.” Despite this claim, several of the defendant’s products—such as Piquillo Peppers & Mango Salsa and Artichoke Truffle sauce—contain citric acid and/or ascorbic acid, Flolo said.
“By marketing the [p]roducts as having ‘No Preservatives,’ Defendant wrongfully capitalizes on and reaps enormous profits from consumers’ strong preference for food products made free of preservatives,” according to the California federal court complaint.
Flolo alleged violations of consumer protection statutes in all 50 states and the District of Columbia. He also made a pre-emptive strike against any attempt by the defendant to rely on a federal pre-emption argument, noting that Food and Drug Administration regulations specifically state that claims such as “No Preservatives” are non-nutritive claims not governed by the agency and therefore fall outside the ambit of FDA enforcement. He requests injunctive and monetary relief.
Finally, a second California lawsuit pits Monster Energy Company against Vital Pharmaceuticals, Inc. (VPX) and owner John H. Owoc, the makers of Bang energy drink.
“Defendants VPX and Owoc sell Bang by misleading and deceiving the public about the product’s ingredients and the benefits of consumption,” Monster alleged. “Simply put, Defendants’ advertising and marketing scheme tricks consumers into believing they are getting something they are not. Bang is marketed as a modern-day snake oil. … According to Defendants, Bang is nothing short of a miracle drink that delivers benefits and cures that have evaded scientists for decades.”
Among the claims targeted in the complaint: Bang can “reverse mental retardation”; can help cure Alzheimer’s disease, Parkinson’s disease, Huntington’s disease and various forms of dementia; and is the “healthiest energy drink” on the market. None of these claims is true, Monster told the court.
The defendants also made false and disparaging remarks about competitors, the plaintiff said, with statements that all other energy drinks are “high sugar, life-sucking soda[s] masquerading as  energy drink[s]” and cause consumers to experience a “crash.”
“The competitive harm of Defendants’ illegal behavior is substantial,” according to Monster’s complaint. “Defendants unfairly and unlawfully boost Bang’s goodwill and affect consumer preferences in the energy drink market where both VPX and Monster compete. Unless curtailed, Defendants’ unlawful conduct will cause irreparable injury to Monster by reducing the value of Monster’s products.”
Listing violations of the Lanham Act and California’s Unfair Competition Law and False Advertising Law, as well as trade libel, the plaintiff seeks monetary damages, a corrective advertising campaign and a permanent injunction against the defendants.
To read the complaint in Calloway v. Bose Corporation, click here.
To read the complaint in Flolo v. Cucina & Amore Inc., click here.
To read the complaint in Monster Energy Company v. Vital Pharmaceuticals, Inc., click here.
Why it matters: The recent false advertising lawsuits included products ranging from headphones to pasta sauce to energy drinks, and featured both consumers seeking to sue on behalf of a nationwide class and an advertiser taking aim at a competitor with a Lanham Act complaint.