Stay ADvised: What's New This Week, August 8
In This Issue:
- Hangover Dietary Supplement Maker Partially Recovers After NAD Challenge
- Judge Says It's OK to "Taco" Chance on Plaintiff's Trans Fat Suit
- Mars Wrigley Chews Out "Vanilla Attorney's" "Shoddy" Dove Chocolate False Ad Suit
- Supermodel's Suit Claims She Did Not Strike a Pose for Revlon
Hangover Dietary Supplement Maker Partially Recovers After NAD Challenge
In humankind's elusive search for the ultimate hangover cure, many a debunked marketing claim has lured the regretful imbiber. Nonetheless, after facing a recent challenge at the National Advertising Division (NAD), some of the claims made by one dietary supplement maker have passed muster.
The Council for Responsible Nutrition (CRN) had challenged claims made by More Labs about its dietary supplement advertised to alleviate hangover symptoms if consumed before a bender. The challenge was part of the NAD-CRN initiative to expand review of supplement claims.
Before we order another round, we should note that during the pendency of the proceedings, the advertiser voluntarily discontinued a number of claims, "Shut up, Liver, You're Fine. Let Morning Recovery do the hard work for you" and "Outside of an IV drip, this is the next best thing" among them.
That left just two key claims for Morning Recovery: that it is "Scientifically formulated to help you bounce back after drinking," and that "Users of Morning Recovery showed up to 80% improvement on four specific hangover symptoms after drinking."
Turning to the substantiation: NAD first found the claim that Morning Recovery is "Scientifically formulated to help you bounce back after drinking" was supported based on a study(n=60) in which men and women consumed a predetermined volume of vodka and later responded to a series of standardized surveys including the Alcohol Hangover Severity Scale (AHSS), Groningen Sleep Quality Scale (GSQS), Karolinska Sleepiness Scale (KSS), Immune Status Questionnaire (ISQ), and Profile of Mood Scale-Short Form (POMSSF) to assess the efficacy of Morning Recovery versus placebo.
Morning Recovery showed statistically significant improvements in several of the individual symptoms of a hangover, including headaches, inability to concentrate, heart pounding, and clumsiness, with 76 to 81 percent improvement.
NAD noted that the study was double-blinded, randomized, placebo-controlled, included a sufficient sample size and appropriate test population. Although NAD questioned whether the failure to control for food and beverage consumption after leaving the facility might be a confounding factor, it ultimately concluded "that the failure to control food and beverage intake … after the end of the study was not a confounding factor" that would render the study unreliable.
NAD also recommended that the advertiser modify its claim to specify the specific symptoms for which study participants achieved near 80 percent improvement. NAD's recommendation was to provide the specificity in the main claim, or in a clear and conspicuous disclosure that appears in close proximity to the main claim or, alternatively, to discontinue the percentage claim entirely.
This case is noteworthy for several reasons, including its relatively small sample size and its use of a fairly large number of survey instruments within the context of a single study—in addition to its subject matter.
Judge Says It's OK to "Taco" Chance on Plaintiff's Trans Fat Suit
Judge Jon S. Tigar of the U.S. District Court for the Northern District of California denied defendant B&G Foods' motion for summary judgment in a class action alleging that company packaging misled consumers by claiming its Ortega brand taco shells contained "0g Trans Fat! per serving"—a claim defendant had not made since 2015. Plaintiffs allege that the taco shells in fact contained partially hydrogenated oil, a substance that contains trans fats—a fact they allegedly were not aware of until 2019.
In denying summary judgment, the court rejected B&G's arguments that plaintiffs could not show reliance or causation, as required under California law. The court stated that although "a factfinder might reasonably conclude that neither plaintiff relied on the '0g Trans Fat!' statement" based on the facts of the case, "both plaintiffs testified at their deposition that they did rely on the '0g Trans Fat!' representation on the front of the package." Though B&G argued that the court should disregard these "sham affidavits," Judge Tigar noted that it was not for the court to make this credibility determination.
The court also rejected B&G's attempt to toss the claim as time-barred by the three-year statute of limitations, given that B&G stopped using the subject claim in June 2015 and plaintiffs did not file their putative class action until 2021. Here, Judge Tigar found a triable issue of fact "as to whether the delayed discovery rule applies to render plaintiffs' claims timely."
This rule delays the start of a limitations period until plaintiff would have been able to discover the cause of action in the exercise of reasonable due diligence. In plaintiffs' case, they alleged they did not become aware that the taco shells contained trans fats until they spoke to their attorney in 2019.
"Perhaps a trier of fact might conclude that it was unreasonable for Silva and Schier not to have investigated whether the taco shells contained trans-fat prior to meeting with their now attorney, but the Court cannot make that determination as a matter of law," wrote Judge Tigar. Indeed, noted the court, 9th Circuit law holds that reasonable consumers are not expected to look beyond misrepresentations made on product front labels "to discover the truth from the ingredients list on the side of the box."
Interestingly, in 2016 Judge Tigar dismissed claims that B&G falsely stated its taco shells contain 0g trans fat in the ingredients panel. The court found that the claim was preempted by the Nutrition Labeling and Education Act (NLEA), which requires trans fats be listed as zero grams if the amount of trans fat is less than 0.5 grams per serving.
Mars Wrigley Chews Out "Vanilla Attorney's" "Shoddy" Dove Chocolate False Ad Suit
Mars Wrigley has filed a motion to dismiss a putative class action lawsuit alleging it falsely advertises its Dove ice cream bars as covered in milk chocolate. The motion not only denies the claims but takes a swipe at the attorney—otherwise known as the "Vanilla Guy"—who has filed this and hundreds of other food fraud lawsuits accusing food manufacturers of deceptively advertising their products.
The complaint alleges that Dove's chocolate coating not only contains milk chocolate but also vegetable oil. According to plaintiff, Mars' "unqualified" milk chocolate claim is thus "false, deceptive and misleading because the 'chocolate' portion of the ice cream bar contains ingredients consumers do not expect in chocolate—vegetable oil."
Mars' motion to dismiss contends that plaintiff's complaint not only lacks common sense but also contravenes federal regulations and does not properly allege violations of New York's General Business Law (NY GBL). In fact, they argue, the suit is just one of a "slew of lawsuits" by the same law firm against multiple defendants asserting that the milk chocolate in various products "is no longer milk chocolate."
Mars argues that plaintiff and his counsel suffer from confusion: plaintiff's complaint confuses the milk chocolate ingredient with the multi-ingredient coating, and plaintiff's counsel has confused the product he's suing on, claiming the words "Chocolate Almond Dipped" are misleading when these words do not appear on the label of the Dove product at issue at all, but "no doubt originate from some other chocolate lawsuit Plaintiff's counsel has filed, or will soon file."
According to Mars, the claims are also preempted by the Food, Drug and Cosmetics Act (FDCA), which "prohibits the misbranding of food and drink," and its Nutrition Labeling and Education Act (NLEA), which preempts statutes and common law actions. Per Mars, plaintiff "can only escape" preemption "if each of his claims seeks to impose requirements identical to those imposed by federal law." Here, Mars asserts the allegations in the complaint go beyond NELA's labeling requirements by changing the standard of identity for "milk chocolate" and instead requiring Mars to identify it as "milk chocolate and vegetable coating."
Mars further argues that plaintiff failed to state a claim under the NY GBL because "it is not misleading to tell the truth." According to Mars, the truth is that milk chocolate is the primary ingredient in the coating on Dove chocolate ice cream bars and meets the FDA definition of milk chocolate. Mars adds that plaintiff cannot claim consumers expect Dove ice cream bars' coating to be made exclusively of chocolate, and Dove does not claim they are exclusively made of the ingredient. Indeed, it is "implausible" to believe that a hard chocolate coating would be created by dipping frozen ice cream into "a heated pool of milk chocolate."
Seeing how courts respond to suits by the Vanilla Guy is approaching a full-time job. Dove chocolate-covered ice cream tastes too good for this one to succeed. We shall see.
Supermodel's Suit Claims She Did Not Strike a Pose for Revlon
A supermodel with millions of online followers has sued Revlon, alleging the cosmetics giant used her image on social media without her permission, in violation of the Lanham Act and the New York Civil Rights Law.
According to the complaint, supermodel Grace Elizabeth Harry Cabe—or Grace Elizabeth as she's known professionally—has more social media followers than Kate Moss and several other top models, is internationally recognized, and has appeared on more than 38 top magazine covers. Key to her complaint, she has also signed an exclusive modeling contract with beauty company—and Revlon competitor—Estee Lauder and derives income from the use of her image in trade.
Grace Elizabeth's complaint, filed late last month in New York federal court, alleges that Revlon used her image on a social media post (and possibly in other advertisements) without her authorization, thereby making it appear as if the model endorsed the promoted Revlon product and was under contract with the beauty company—when that is decidedly not the case. In fact, the complaint alleges that the subject photograph was actually taken for a Vogue Mexico editorial, and the model was wearing Marc Jacobs makeup, not Revlon.
Grace Elizabeth argues that this unauthorized commercial use of her likeness for publicity purposes without her consent violates the New York Civil Rights Law, and that Revlon's intentional trade on her "fame, beauty, reputation and talent as a model" creates a "false impression of endorsement," and "misleadingly represents that plaintiff and REVLON have a … business relationship," in violation of the Lanham Act.
According to the complaint, Revlon's alleged use is even more problematic because the company approached the supermodel for a deal to use her likeness but she refused. Instead, Grace Elizabeth signed a makeup endorsement deal with Estee Lauder, to which she is currently bound and pursuant to which she appears as a beauty spokesmodel for the company, she alleges.
Plaintiff argues that Revlon's unauthorized use of her likeness creates confusion regarding her involvement with Revlon and Estee Lauder. This confusion is all the more pronounced because Revlon benefited from the implication that it had secured the rights to the model's image. She further alleges that Revlon's unauthorized use of her "image and likeness … were calculated … to, and upon information and belief, did in fact, bestow upon REVLON an economic advantage by … promoting and generating sales of products."
The complaint also avers that as a sophisticated licensor of intellectual property who has sought and obtained multiple promotional and commercial deals with models, Revlon knew that its unauthorized use of the model's image was illegal.
Assuming that all facts alleged in the complaint are true, this case may come to be one of those cautionary tales—like the 2014 Katherine Heigl suit—that advertising lawyers will cite for years to come. When deciding whether to interact with celebrity images or posts with which they have no affiliation, it is important to consider whether that celebrity has existing endorsement deals as that can substantially increase the risk of suit.