Stay ADvised: What's New This Week, August 3
In This Issue:
- Essential Oils Can’t Claim to Solve Consumer Woes, at Least Not Without Scientific Proof
- NAD Recommends SDC Discontinue Comparative Ad Claims, But OKs "Puffery"
- Judge Dismisses Plaintiff's Claims in Blood (Testing Device) Rivalry
- Honey False Ad Class Action Dismissed for Lack of Evidence
- Vanilla Class Action Bites the Dust
Essential Oils Can’t Claim to Solve Consumer Woes, at Least Not Without Scientific Proof
Sadly for those hoping products sold by Young Living Essential Oil might indeed "help promote feelings of stability and calm during occasional times of moodiness," "promote a sense of clarity and focus," boost "a positive outlook on life," or "help maintain energy levels," for NAD at least, the proof just wasn't there. Nor could the company support claims to provide a "therapeutic grade" product, the threshold claim that informed whether or not some or all of the remaining claims were simple "purity" or "aromatic" concepts versus more hard-hitting wellness and health messages.
Interestingly for this case, both parties submitted consumer perception evidence, the advertiser's finding that "therapeutic grade" did not convey "a medicinal or healing message" and the challenger's finding just the opposite. Young Living tried to buttress its survey finding with the argument that, in any case, there are many "accepted" definitions for "therapeutic" that do not render the claim health-related.
NAD was not having it. It found the advertiser's survey methodology fundamentally flawed and that the messages conveyed by the advertising claims were indeed "specific health-related benefit claims" requiring competent and reliable scientific evidence. In reaching its conclusion, NAD reviewed and found the challenger's survey "sufficiently reliable" to show that the claim "therapeutic grade" reasonably conveyed a message that the essential oils had a medicinal benefit. And as it generally does, however, NAD also stepped in to the shoes of the consumer to conclude that, "at the very least," the reasonable consumer would take away the message that the oils provide some mental or physical benefit, and so looked next to the advertiser's support.
In the first instance, Young Living voluntarily discontinued a number of the challenged claims NAD considered to state or imply such benefits. For others, NAD recommended no modification, even without support, including claims the essential oils are "harmonizing" and "liberating," determining such claims constitute "mere puffery" for which consumers would not expect substantiation. NAD determined, however, "that other claims (even with the discontinuance of the claim 'therapeutic grade') connote the ability of the advertiser's essential oils to confer an actual benefit to the product user's physical or mental health—in essence, conveying a cause and effect relationship" requiring support.
Turning to the submitted support, Young Living provided no scientific studies testing their actual essential oil products, and NAD found the general ingredient studies they did provide in support of their "calming, relaxation, anxiety relief, sleep aid, clarity, focus, alertness, energy and mood/motivation claims" were insufficient to support product claims. NAD has long held that product claims require testing on the product itself.
Although ingredient studies may sometimes be used to support carefully qualified claims, they cannot be projected to products with different dosages, formulations, sourcing, blending, processing, combinations of ingredients or delivery mechanisms. Additionally, the studies submitted in many cases tested specialized populations and for those reasons as well, could not be extrapolated for general use. In the absence of "competent and reliable" tests or studies, NAD found the claims unsupported.
Young Living has stated it will appeal NAD's finding to the National Advertising Review Board.
As seems to happen more frequently than not, NAD found the advertiser's consumer perception survey fatally flawed, although it gave credence to the challenger's survey. The stronger message of this case, however, is a reminder that NAD will always look closely at advertising claims and their "fit" with the available evidence, but never more carefully than when reviewing health and safety claims and perhaps never more than in the time of COVID-19.
NAD Recommends SDC Discontinue Comparative Ad Claims, But OKs "Puffery"
The third time's the charm, sort of for Smile Direct Club (SDC), which was back before the National Advertising Division for the third time in about as many months. This challenge centered on claims by SDC about its Bright On Whitening Kit. Although NAD recommended that SDC discontinue its challenged express claim, it allowed other challenged claims to continue, finding they constituted "mere puffery," adding to NAD's recent puffery precedent.
The challenger, The Procter & Gamble Company, alleged as deceptive SDC's claims that its product was "3x faster to use than strips," that its product provides "premium whitening" and the "brightest bright" smile. P&G argued that the latter two claims conveyed an unsupported, "inherently comparative message" that consumers prefer SDC's strips to challenger's because they work faster and result in the "brightest bright smile." SDC countered that the "premium" and "brightest" language contained subjective adjectives "that cannot be proved or disproved and are, therefore, puffery," not requiring substantiation.
NAD agreed as to non-actionable puffery, but only in the context of SDC discontinuing any comparative claims, including the claim that its product is "3x faster to use" than strips, which NAD also recommended be discontinued despite SDC's attempts to provide substantiation. As so often happens, NAD's decision was grounded in the NAD rule that an advertiser must support not only the message it intended to convey, but all "reasonable" takeaways, meaning all claims reasonably conveyed by the advertising, in context.
SDC's whitening kit consists of a paint-on hydrogen peroxide whitening pen plus a blue light, the instructions for which call for use twice a day, each time for 5 minutes. The challenger markets a series of white strips with varied instructions, albeit most require 30 minutes of use per day.
SDC argued that its strips were indeed three times faster "to use" than the challenger's tooth whitening product, because the product must be worn only 10 minutes per day vs a longer wear time for the P&G Crest Whitestrip products. NAD disagreed, agreeing with P&G that the claim implied not only that the product required less wear time per day, but that it also whitened teeth more quickly (e.g. less "use" time) and provided comparable results, claims SDC could not support.
NAD explained that the advertiser's quantified claim, "'3x faster to use than strips,' is not limited to the wear time of the parties' respective products but, rather, to their respective "use" times. There is no head-to-head testing in the record demonstrating that the use time necessary to paint on the advertiser's whitening gel on the user's individual teeth and use the blue light device for the requisite ten minutes daily is three times less than it takes to open a strip packet, apply to the teeth, and wear for 30 minutes daily."
Most importantly, NAD found the claim conveyed a comparable performance message (equivalent whitening), the advertiser also could not support. NAD noted that, "In comparing wear times, consumers could reasonably infer some equivalency in whitening benefits, particularly in the context of the advertising here, in which the "3x faster to use claim" sits alongside claims of "Premium whitening" and "Brightest bright" smile on product packaging and website advertising."
NAD noted that although the claim "3x faster to use" might be literally true, SDC's claim still conveyed misleading messages "broader" than the evidence offered to support it. In the absence of comparative claims, as noted, the "puffery" could continue.
When considering puffery, the context is, as always, key. NAD here showed its willingness to accept a puffery defense, but only on the condition that the context of those claims, as challenged, changes.
Judge Dismisses Plaintiff's Claims in Blood (Testing Device) Rivalry
A maker of a blood testing device accused by a competitor of falsely advertising its product won big on dueling motions for summary judgment, as the court dismissed all but one of plaintiff's claims, finding that it had not shown that Magnolia Medical Technologies' advertisements were false.
The Magnolia blood sample collection device are designed for healthcare providers interested in minimizing false positives. The case centered on plaintiff Kurin's allegations that Magnolia falsely advertised the effectiveness of its Steripath device, and that it misled consumers into believing that its device was approved by the FDA.
Judge M. James Lorenz disagreed, denying and dismissing all but one of plaintiff Kurin's claims for summary judgment, and granting Magnolia's motion. The court also denied Kurin's motion for summary judgment of Magnolia's counterclaims. As a result, Kurin's 2018 complaint alleging false and misleading representations in the marketing of Magnolia's Steripath blood collection device in violation of the Lanham Act and California's False Advertising Law (FAL) and Unfair Competition Law (UCL), is all but dead in the water.
Regarding Kurin's assertions that Magnolia's claims about Steripath efficacy were literally false, the court found that studies provided by Magnolia in support showed that claims its product was 93 percent effective were accurate. On one claim the court did find that Kurin had shown that these claims represented the average rate of effectiveness, not the highest effectiveness, as Magnolia has claimed:
…to the extent Kurin moves for summary adjudication of literal falsity of Magnolia's claims that Steripath reduces blood culture contamination by an average of 92% or 93% the motion is granted only insofar as Magnolia represented that the 93% average is based on 'multiple publications and peer-reviewed studies.'
The court found other advertising claims Kurin challenged to be mere nonactionable puffery, including Magnolia's claims that Steripath "eliminates" "blood culture contamination." Judge Lorenz also dismissed Kurin's claims that Magnolia misled consumers about its status with the Food and Drug Administration (FDA), finding that Magnolia's target market of health professionals would not come away with the false impression that Magnolia's claims that its product is "registered and listed" with the FDA meant that the product was cleared or approved by the FDA.
Among other things, this case serves as a reminder that courts are generally more willing to find puffery that, for example, the NAD and are likewise less stringent about the need to support "all reasonable consumer takeaways," the standard enforced at NAD.
Honey False Ad Class Action Dismissed for Lack of Evidence
Nothing sweet about it: a California federal judge has dismissed a class action suit accusing Sioux Honey Association Cooperative (selling honey under the Sue Bee brand) of falsely advertising its honey, finding the lead plaintiff failed to produce sufficient evidence in support of her claims.
Plaintiff Susan Tran alleged that she purchased the nectar in question in reliance on Sue Bee's representations that the honey was "pure" and "100% pure." That is, until the moment she found out the honey contained trace amounts of a chemical weed killer called glyphosate. At that point she sued Sue Bee, alleging that the honey is "misleadingly labeled" under California law because it contains a synthetic chemical while being advertised as pure.
Judge Josephine L. Staton found the evidence provided by Tran in support of her claims was insufficient to show that a reasonable consumer would be misled by the "pure" claim on the honey ads. Primarily, this came down to the fact that the honey contained only "trace amounts" of the chemical, and that supporting evidence provided by Tran—including by her own expert witness—failed to address whether consumers would consider trace amounts of the chemical to have a negative impact on purity.
Tran's primary evidence in support of her claims was a survey and expert report testing the "materiality" and "consumer understanding" of "Pure" in this context. The survey, however, failed to address the question Judge Staton said was at the heart of plaintiff's theory of the case; whether reasonable consumers would think that trace amounts of glyphosate would impact the honey's purity.
The court also pushed back on Tran's argument that she need not rely on the survey because the "primary evidence in a false advertising case is the advertising itself," reasoning that even if a survey was not required to prove plaintiff's case, plaintiff still had to show some evidence in support of her claims that would meet the "reasonable consumer" test, and had failed to do so.
As with so much in law and in life, it all comes down to the reasonable person or, in this case, the reasonable honey-purchasing consumer. This case is in line with guidance from the FTC's green guides that marketers can advertise "free of" claims if only "trace" (non-dangerous) amounts of the substance are present.
Vanilla Class Action Bites the Dust
A New York federal court dismissed a proposed class action case alleging that Wegman's grocery chain falsely advertised its vanilla ice cream as containing natural vanilla flavor, ruling that plaintiffs did not show that the actual product label is deceptive, nor did analytical tests of the ice cream's vanilla content prove that anything underhanded is afoot.
Plaintiffs Quincy Steele and Jimmy Arriola brought the suit alleging that Wegman's falsely advertised its ice cream as containing natural vanilla flavor while most of the flavoring in the ice cream comes from some "non-vanilla source." The court disagreed, reasoning that "the case comes down to two decisive questions: did the label on the ice cream container misrepresent the container's contents? and [sic] did the… analysis plaintiffs' chemist performed show there was fraudulently little vanilla bean extract in the ice cream?" and that "The answer to each of those questions" is "No."
Judge Louis L. Stanton reasoned that plaintiff had not shown that anything in the content of the ice cream label was deceptive, noting that Wegman's did not claim on the label or ingredients list that the product contained vanilla bean or vanilla extract. Characterizing the case as being about the natural versus artificial flavor dichotomy rather than about the distinction between real vanilla versus vanilla flavoring, the judge wrote that "even if vanilla or bean extract is not the predominant factor, if the sources of the flavor are natural, not artificial, it is hard to see where there is deception."
The court also took issue with the study provided by plaintiffs in support of their allegations. Plaintiffs had argued that the fact that results of its study showed a significant amount of vanillin in the ice cream and did not detect any of the other vanilla bean marker compounds is proof positive that the product did not contain real vanilla. But the court rejected this assumption, positing other possible explanations for the results, such as that the test might not have been sensitive enough to detect smaller amounts of vanilla bean marker compounds.
Judge Stanton also struck down plaintiffs' arguments that the case had anything to do with FDA standards for labeling food, saying that the fact the case is rooted in a private right of action renders arguments regarding "federal standards for ice cream flavor descriptions" irrelevant, and that the case is squarely about whether the marketing of the ice cream was deceptive.
Plaintiff's law firm is currently pursuing multiple lawsuits making similar allegations regarding vanilla-related claims. Resolution of these cases should provide additional guidance to the often confusing "natural" space and how such claims intersect, if at all, with FDA labeling rules.