Court Holds Spokeo Decision Doesn’t Preclude Standing in TCPA Class Action

Nghiem v. Dick’s Sporting Goods, Inc.

Factual Allegation:

  • Text Message sent without adequate consent

Allegation:

  • Plaintiff has no standing to bring claim under Supreme Court decision in Spokeo v. Robins because the plaintiff couldn’t identify any actual damages

Decision:

  • Plaintiff has standing
  • TCPA violation entails inherent harms:
    • Annoyance, battery drain, time waste, and possible service charges

CA “Made in the USA” Lawsuit Dismissed Over Change to CA Law

Alaei v. Rockstar, Inc.

Factual Allegations:

  • In 2015, the plaintiff bought beverage with “Made in the USA” and U.S. image on can
  • Product contained ingredients made outside of the U.S.
  • Was illegal in CA to advertise “Made in the USA” if all ingredients were not of domestic origin
  • On 1/1/16, CA law changed to allow “Made in USA” if foreign-sourced ingredients comprise less than a certain percentage of the product’s total ingredients

Question: Which law applies to “Made in USA” claims?

Decision:

  • New law applies. Even if the product was purchased prior to the law change, “Made in USA” is not necessarily illegal if the product doesn’t have 100% domestic ingredients

NAD Reviews Jelly Belly Sports Bean “Formulation” Claims

In re Jelly Belly Candy Co. (#6048)

Ad Claim #1:

  • “Sports Beans Energizing Jelly Beans are formulated to help fuel the body during intense exercise”

Decision:

  • Claim supported
  • Advertiser pointed to various ingredients that were generally accepted by the scientific community as offering benefits to exercise capacity

Ad Claim #2:

  • “Scientifically Formulated to Maximize Sports Performance”

Decision:

  • Claim not supported
  • Consumers would interpret this claim to mean that the amounts of the highlighted ingredients have been proven to provide optimal performance, i.e., a faster run and/or ride
  • Jelly Belly argued athletes would not interpret it in this manner

International Trade Court Sheds Light on “Made in the USA”

Energizer Battery v. United States

Facts:

  • Energizer flashlight had 50 different parts
  • Bulk of the parts were made in China
  • Final assembly of the parts into product completed in USA

Question:

  • Did “substantial transformation of the components to the flashlight occur within the USA such that it can be labeled “Made in the USA” for country of origin (importation) labeling purposes?

Decision:

  • No. Components were not “substantially transformed” in USA
  • Decision based upon the fact that name, character, and use of each part within the flashlight remained the same

Court Determines $4.3 Million is Proper Penalty for False Advertising by 5-Hour Energy

State of Washington v. Living Essentials LLC

Facts:

  • WA court held that the following ad claims were not supported:
    • Doctors recommend the product; users would experience a “no crash” energy boost; and the combination of ingredients provides a benefit that is superior to just drinking coffee

Issue: How are penalties calculated for violation of false advertising law in WA?

Decision:

  • Deceptive ads on consumable products present more of a risk to the public than deceptive ads for non-consumable products
  • $100 x number of airings/publications of ads containing false claims
  • $4.29 x number of packages sold containing false claims