Court Holds Spokeo Decision Doesn’t Preclude Standing in TCPA Class Action
Nghiem v. Dick’s Sporting Goods, Inc.
- Text Message sent without adequate consent
- Plaintiff has no standing to bring claim under Supreme Court decision in Spokeo v. Robins because the plaintiff couldn’t identify any actual damages
- 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.
- 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?
- 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”
- 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”
- 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
- Energizer flashlight had 50 different parts
- Bulk of the parts were made in China
- Final assembly of the parts into product completed in USA
- 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?
- 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
- 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?
- 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