The latest developments in fashion law related to false advertising and deceptive marketing practices focus on recent class action lawsuits against cosmetics companies, socially conscious advertising, and product demonstrations in advertising.
Panelists Michael Oberlander (Senior Vice President, General Counsel and Corporate Secretary at Brown Shoe Company) and Anca Cornis-Pop (Senior Counsel of Global Marketing at Avon Products, Inc.) addressed these issues at the Cardozo Law School’s Semi-Annual Fashion Law Symposium: The Latest in Brand Marketing and Legal Compliance in a panel titled “False Advertising & Deceptive Marketing Practices: Trends in Litigation and Governmental Enforcement Actions” panel moderated by Davis & Gilbert partner Ina Scher.
CLASS ACTION LAWSUITS
The cosmetics industry has recently seen an increase in class action lawsuits based on anti-aging claims. Though there is often no rhyme or reason as to why certain companies are targeted, it is highly likely for companies that receive warning letters from the Food and Drug Administration to be named as defendants in class action lawsuits. The footwear industry has also seen an increase in class action lawsuits based on claims made related to shoes and their “muscle activation” effects. The key takeaway from the majority of these cases is that if a claim is made about the benefits of a product, this claim must be backed with evidence; otherwise it is better not to make the claim.
With the Federal Trade Commission’s issuance of revised “Green Guides” that address environmental claims, the fashion industry has reacted by revising the manner in which the environmental benefits of certain products are touted. Consumer advocates and others are carefully looking at claims about the eco- friendliness of products. If a company decides to make eco-friendly claims, then it should have solid substantiation for those claims and ensure that the claims are specific and tailored to the product in order to prevent consumer deception.
The National Advertising Division of the Council of Better Business Bureaus (NAD), a self-regulatory body, recently stated that using a disclosure will not cure the misleading impression created by the use of Photoshop to enhance the appearance of eyelashes in mascara advertisements. However, the NARB recently overturned one of these NAD decisions on appeal, finding that false lashes were not inherently deceptive or that the photograph was “literally false” as long as the use of lash inserts was clearly disclosed and as long as the look of the mascara on all lashes—real and fake—was actual. Before this NARB decision, photoshopping and other enhancement techniques were cited as deceptive in many of the anti-aging class actions.
THE BOTTOM LINE
As an increasing number of claims are filed against companies in the fashion and cosmetics industries based on false advertising and deceptive marketing, companies should ensure that they have adequate substantiation for all claims made prior to making these claims, that their environmental claims are specific and properly substantiated, and that their use of technology (including Photoshop) in the context of a product demonstration is disclosed and does not create misleading impressions of the functionality of their products.