This past week, several consumer actions made headlines that affect the retail industry.

FTC Extends Comment Period for Paint Claims

On August 7, 2017, the FTC extended the public comment period related to four proposed settlements with paint companies. According to the original complaints from June 2017, Benjamin Moore, Imperial Paints, ICP Construction and YOLO Colorhouse deceptively claimed that their paint products were either emission-free or contained zero volatile organic compounds, including during and immediately after application.

The public comment period was set to expire on August 10, 2017. The FTC voted 2-0 to extend the comment period until September 11, 2017. Comments for Benjamin Moore & Co., Inc; Imperial Paints, LLC; ICP Construction Inc. and YOLO Colorhouse, LLC, can be submitted electronically at the relevant links.

Neurocore to Appeal NAD Recommendation Regarding “Brain Training Center”

The NAD has recommended that Neurocore, LLC, discontinue certain advertising claims about its “Brain Testing Centers.” Neurcore has indicated that it will appeal the decision to the National Advertising Review Board (“NARB”).

Neurocore claims that its Brain Training Centers use neurofeedback to have positive, “drug free” effects on a variety of health issues, including ADHD, anxiety, Autism, depression, memory, migraines, sleep and stress. Neurocore’s advertising materials included quantified outcomes for these conditions, and pointed to internal analyses and general studies regarding neurofeedback, but not necessarily the method of feedback employed at Brain Training Centers. The NAD felt that this proffered evidence was insufficient to substantiate the claims made; in particular, the NAD pointed to the fact that none of the evidence involved randomized controlled trials comparing Neurocore’s methods against a control group.

NAD Recommends Certain Claims by Rubbermaid be Discontinued; Rubbermaid to Appeal

After a challenge by OXO International, Ltd., the NAD recommended that Rubbermaid discontinue certain advertising claims regarding its FreshWorks Produce Saver Containers. Rubbermaid published claims including that the product keeps produce fresh “up to 80% longer,” and is able to “regulat[e] the flow of oxygen and carbon dioxide in and out of the produce container.”

The NAD found that Rubbermaid could substantiate its oxygen and carbon dioxide flow claims. However, while Rubbermaid qualified the “80% longer” claim with the statement “[b]ased on strawberries in FreshWorks containers vs. store packaging,” the NAD found that consumers may be confused and believe that the products are effective for all produce, not just the tested strawberries. Rubbermaid indicated that it would challenge the NAD’s finding to the NARB.

NAD Recommends Sanderson Farms Scrap Ads Targeting “Raised Without Antibiotics” Claims

The NAD has cried fowl about a Sanderson Farms’ advertising campaign attacking chicken producers’ claims that their products are “raised without antibiotics.” Sanderson Farms ads stated that such claims are “marketing gimmicks,” and “just a trick to get you to pay more money” because federal law requires that poultry be purged of antibiotics before being sold.

The NAD took issue, not with the literal claim about federal law, but about whether Sanderson Farms’ ads reasonably conveyed the message that all poultry labels that say “raised without antibiotics” are meaningless, or whether “they convey the message that there are no attendant health risks associated with consuming farmed animals that have been raised with antibiotics.”

Sanderson Farms has said that while it disagrees with the NAD, it will refrain from making such claims in the future.