Stay ADvised: What's New This Week, January 17
In This Issue:
- Not All Protein Is Created Equal, Claim Plaintiffs in Ezekiel Bread False Ad Suit
- Accountable Tech Asks FTC to Hold Social Media Accountable for "Surveillance Advertising"
- Offsides! Fan's $6 Billion Suit Claims Jets and Giants Not New Yorkers 'Cause They Play in Jersey'
- What Smells Fishy? Plaintiffs Allege Ziploc's Freshness and Protection Claims Are Leaky
Not All Protein Is Created Equal, Claim Plaintiffs in Ezekiel Bread False Ad Suit
Another helping of lawsuit's been served at the Food Court, and this time there's bread and cereal on the menu. Two plaintiffs have filed a lawsuit in the Northern District of California alleging that the manufacturer of Ezekiel 4:9 bread is misrepresenting the foods' protein content.
Plaintiffs take issue with Food For Life Baking Co.'s claim that its Ezekiel 4:9 brand products contain "7g PLANT-BASED PROTEIN PER SERVING." They allege that the brand's products effectively contain far less protein because a significant portion of the protein the products contain is not digestible by humans. The lawsuit calls the products misbranded and the company's advertising of them "unlawful, misleading, and intended to induce consumers to purchase the products at a premium price, while ultimately failing to meet consumer expectations."
According to plaintiffs, not all proteins are created equal—they don't all have the same ability to meet nutritional requirements. Although plaintiffs acknowledge that the products do technically contain the advertised protein amount, they allege that a significant portion of that protein is not available to support human protein needs.
The FDA apparently has a method for determining protein "quality" called the "Protein Digestibility Corrected Amino Acid Score" (PDCAAS). The FDA requires advertisers to use this method when determining the amount of protein to list in the Nutrition Facts Panel as a percent daily value.
Plaintiffs go on to explain that Ezekiel's plant-based proteins come from wheat, which has a lower PDCAAS value than animal-based proteins and, "accordingly, defendant's use of low quality proteins, even in combination with some higher quality proteins, means that they actually provide far less protein to humans than the Product labels claim."
According to the complaint, the marketing of the products is false and a violation of federal law because the company fails to provide the accurate percentage daily value of protein calculated via the PDCAAS method. Further, plaintiffs allege that the products' front label claims are independently misleading because the protein content is much lower after adjusting using the PDCAAS.
This isn't the first lawsuit in recent years to claim that Food For Life's nutrient claims are false. A 2019 class action lawsuit alleged the company misrepresented that its cereals have lower levels of "antinutrients." The lawsuit also alleged that representations about the benefits of its "sprouted grains" were false. That case was voluntarily dismissed.
Accountable Tech Asks FTC to Hold Social Media Accountable for "Surveillance Advertising"
An advocacy group whose stated mission is to "tackle the existential threat social media companies pose" has asked the Federal Trade Commission (FTC) to issue rulemaking banning "surveillance advertising" by social media companies. Accountable Tech, the group behind the 64-page petition, asks the FTC to "use its rulemaking authority" to prohibit such advertising as an unfair method of competition that harms advertisers and consumers.
For those unfamiliar with the term, surveillance marketing is a term referring to the practice of tracking, profiling, and using consumer data gleaned from digital use to sell "hyper-personalized ads." The group says the practice reinforces the monopoly of a few big tech companies that gained early access to the majority of the market—and the user bases that go along with it—and locks out other companies, particularly ad publishers.
The petition explains that advertisers have few other avenues to reach consumers via digital ads because the marketplace is controlled by a select few companies. The result is that advertisers purchase the "overwhelming majority of online display ads" from "opaque" and "rigged" firms with deceptive metrics, says Accountable Tech. Google, for example, "extracts a 'monopoly tax on billions of daily transactions,'" claims the group.
According to Accountable Tech, companies "who compete with publishers for advertising—have exploited the superior targeting capacity derived from the wealth of user data and attention to cannibalize the digital ad market and siphon critical revenue away from publishers."
Consumers, too, have allegedly been harmed by surveillance advertising, according to the petitioners. Accountable Tech argues that not only do higher costs for advertisers trickle down to consumers, but so-called "free" products are anything but. Rather, consumers pay for content by relinquishing personal data.
The petition asks the FTC to prohibit surveillance advertising entirely as an unfair method of competition. It asks for a ban on the use of personal data for delivering advertisements. Alternately, it seeks a more "restrained" rule that would ban the sharing of user data for advertising purposes.
Accountable Tech's petition advocates for ending surveillance advertising, and it also cites other societal ills that have been blamed on social media and this advertising method such as the spread of misinformation. The group is obviously not alone when it voices concern over the impact of social media on society. But by approaching it from an antitrust angle, Accountable Tech seeks to find a legal basis for rulemaking under President Biden's recent executive order aimed at eliminating "anticompetitive practices wielded by dominant digital platforms."
As if on cue, the U.S. Senate has taken notice as well. This week, a trio of Democratic Senators introduced a bill that would ban surveillance advertising and bestow authority on the FTC and state attorneys general to enforce the law. What’s more, the bill provides a private right of action to bring civil claims against entities that violate the would-be ban on surveillance advertising.
Offsides! Fan's $6 Billion Suit Claims Jets and Giants Not New Yorkers 'Cause They Play in Jersey'
In a true display of New York pride, a local football fan, fed up that the Jets and Giants call themselves New York teams even though they have played in New Jersey for more than 30 years, is taking matters into his own hands—by suing the teams for false advertising and demanding the teams move to New York or pay damages of $6 billion.
New Yorker and football fan Abdiell Suero filed the class action lawsuit early this year against the Giants, the Jets, and MetLife Stadium. Plaintiff argues that the teams' use of the New York name to advertise themselves artificially increases their revenue thanks to the name recognition associated with New York, while leaving New Yorkers in the dust (or the PATH train, to be more precise).
Suero alleges that the teams' relocation to New Jersey many years ago damaged not only fans but also the state of New York, which lost out on "billions of dollars from interstate commerce that should have rightfully been spent" there. According to the complaint, defendants benefited from the tax-free status granted to them in New Jersey "at the expense of Plaintiff and the class of millions of Giants and Jet fans while also imposing a larger carbon footprint on the environment."
Plaintiff alleges that the Jets and Giants should play "fair" because if other New York sports teams like the Knicks, Yankees, and Rangers must pay a premium to play in New York and call themselves New York teams, so, too, must the Giants and Jets. Alternately, plaintiff argues that the teams can always change their names "to more accurately reflect the location of their stadium" in New Jersey.
The complaint alleges false advertising, RICO violations, and unjust enrichment. Additionally, the lead plaintiff is apparently not a fan of MetLife stadium, as he also alleges that the teams falsely advertise how great the venue is and how close the stadium is to New York. As for damages, Suero points to the transportation costs and time that New York resident class members have lost commuting to and from East Rutherford, New Jersey to attend games.
Plaintiff launches one final Hail Mary by alleging the emotional and psychological damages that fans with a "sense of belonging and affiliation" have faced since the teams relocated to New Jersey (and that does not even take into account the pain caused by each team's abysmal records over the past few seasons).
This lawsuit may not have much merit, but with a raging pandemic, political polarization, climate change, inflation, and all the other calamities raising hackles around the world, it's nice to know that some are still passionate enough to raise a fuss about what used to be many American's favorite thing to argue about: sports.
What Smells Fishy? Plaintiffs Allege Ziploc's Freshness and Protection Claims Are Leaky
Taking a page from an NAD decision from just this past November, a recently filed lawsuit alleges that S.C. Johnson & Son Inc. (SCJ) is falsely advertising the "unbeatable protection" of its Ziploc bags. According to plaintiff Errika Brown, SCJ's claim that its Ziploc product has a "power shield technology: unbeatable protection" that gives the product a superior ability to "preserve freshness and provide protection" is false.
According to the complaint, in addition to the "power shield" image and text on the front label of the Ziploc bags, there is also a representation on the top right of the product packaging in small letters that reads "Stronger than Hefty" and underneath it in even smaller letters, "on punctures and tears." An asterisk refers to a back panel disclaimer that clarifies the testing method used by Ziploc to arrive at this claim.
Plaintiff further alleges that a reasonable consumer would not make the causal connection between the "unbeatable protection" claim and the limiting qualifier addressing "punctures & tears." "Though the small print in the corner attempts to qualify the unbeatable protection by limiting it to punctures and tears, consumers are unlikely to connect the two statements because they are far apart and there is no link between the two claims," alleges plaintiff.
Plaintiff also alleges that Ziploc's "unbeatable freshness" claim is false because the "moisture test" used by Ziploc is "misleading," especially as consumers do not know the "advanced chemistry about food preservation" that they would have to understand in order to recognize this statement as misleading.
According to plaintiff, these claims are misleading because the test SCJ relies on as support is actually only applicable in limited scenarios and does not necessarily make the product more effective in preserving freshness than its competitors in all situations. However, SCJ's marketing leads the reasonable consumer to assume that the product is the most effective and most resilient of its kind available in all respects, argues plaintiff.
The last few months have seen a bit of a trend of NAD challenges that turn into lawsuits, albeit plaintiff does not cite the NAD decision directly in the complaint. That NAD case is currently on appeal to the National Advertising Review Board (NARB).
Whether SCJ seeks to stay the appeal pending resolution of the class action remains to be seen. Although the self-regulatory body will stay its hand in light of pending litigation regarding identical claims, class actions rarely go to resolution and, so, may or may not support an NAD/NARB stay.