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Stay ADvised: Barilla's Pasta Win, NAD's Pricing Push & FTC's Hidden-Fee Crackdown

Brand Protection & Advertising Law News
11.04.26
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In This Issue:

Barilla Serves Up a Win in "Italy's #1 Brand of Pasta" Lawsuit

A federal judge granted summary judgment to Barilla in a class action alleging that its "Italy's #1 Brand of Pasta" claim misled consumers into believing its pasta was made in Italy with Italian ingredients. The court held that the claim was not misleading as a matter of law because its ambiguity could be resolved by a disclosure on the product's side label.

When Can a Side-Label Disclosure Clarify a Front-Label Claim?

Plaintiffs alleged that Barilla's claim, combined with Italian-themed packaging and marketing, falsely suggested that its pasta was manufactured in Italy using Italian ingredients, when it was actually made in the United States. Barilla countered that the claim accurately described its status as Italy's leading pasta brand.

The central issue was whether the front-label claim was unambiguously deceptive or merely ambiguous. Under Ninth Circuit precedent, an unambiguously deceptive front-label claim cannot be cured by disclosures elsewhere on the package. But when a front-label claim is ambiguous, courts may consider side- and back-label information to determine whether the packaging as a whole is misleading.

Applying the Ninth Circuit's decision in Whiteside v. Kimberly-Clark Corp., the court explained that a claim is not ambiguous simply because it has multiple possible meanings. Rather, a claim is ambiguous when reasonable consumers would necessarily require additional information before concluding that it conveys a particular representation.

The court rejected plaintiffs' proposed interpretation of Whiteside, under which a claim would be unambiguous whenever it was susceptible to at least one concrete, false meaning. Such an approach, the court reasoned, would be inconsistent with other Ninth Circuit precedent recognizing that claims can be ambiguous even when one possible interpretation is misleading.

Here, the court found that "Italy's #1 Brand of Pasta" had a plausible, literally true meaning: Barilla was the leading pasta brand in Italy. The court also pointed to Barilla's consumer survey, in which more than 80% of attentive respondents associated the claim with brand popularity, while approximately 30% associated it with Italian ingredient sourcing. Plaintiffs lacked reliable survey evidence establishing that the claim unambiguously conveyed the allegedly deceptive origin message.

Because the claim was ambiguous, the court considered the side-label disclosure, "Made in the U.S.A. with U.S.A. and imported ingredients." That disclosure clarified the pasta's origin, and the court concluded that the labeling was not misleading as a matter of law.

The court also excluded plaintiffs' consumer perception survey as unreliable because it steered respondents toward the challenged interpretation without presenting alternative meanings. Without that evidence, plaintiffs could not establish a triable issue of consumer deception, providing an independent basis for summary judgment.

Key Takeaways

  • Not every potentially misleading interpretation makes a claim unambiguously deceptive. The court rejected the argument that a front-label claim is unambiguous simply because it is susceptible to a concrete, false meaning. The relevant question is whether reasonable consumers would need additional information before concluding that the claim conveys that meaning.
  • Side- and back-label disclosures can clarify ambiguity, but cannot cure an unambiguously deceptive claim. The decision reinforces the distinction drawn in Whiteside: advertisers cannot rely on disclosures elsewhere on the package to contradict a clear, misleading front-label representation. But when consumers would need more information to understand the front-label claim, those disclosures may resolve the ambiguity.
  • Consumer perception evidence matters, and survey design can make or break a case. Barilla's survey supported the court's finding of ambiguity by testing multiple interpretations of the challenged claim. Plaintiffs' survey, by contrast, was excluded because it suggested the allegedly deceptive interpretation without allowing respondents to evaluate alternatives.

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FTC and States Target Lens.com Over Hidden Fees and Deceptive Pricing

The Federal Trade Commission (FTC), joined by Utah and Nevada, has sued online contact lens retailer Lens.com, its owner, and an affiliated company, alleging a deceptive pricing scheme that routinely doubled advertised prices through hidden fees. According to the complaint, the practices cost consumers hundreds of millions of dollars and prevented them from effectively comparison shopping.

Alleged Deceptive Pricing Practices

The complaint describes a familiar playbook for deceptive pricing: attract consumers with artificially low advertised prices, impose substantial mandatory fees, and design the checkout process to obscure the additional charges.

Specifically, the FTC and states allege that Lens.com:

  • Advertised artificially low prices. Lens.com promoted eye-catching prices in Google search ads and on its website, including promises of "NO HIDDEN FEES," while imposing mandatory charges that routinely doubled the advertised price.
  • Misrepresented the nature of its fees. Lens.com labeled the additional charges "Taxes & fees," even though they did not include state sales taxes. The complaint alleges that this characterization concealed the true nature of the charges.
  • Used deceptive website design to hide fees. The "Taxes & fees" line item appeared below the visible portion of an interim checkout page, while a prominent "Continue" button encouraged consumers to proceed without scrolling. Consumers who followed that prompt never saw the line item.
  • Extended the practices to subscriptions. Lens.com allegedly used the same misleading prices to enroll consumers in its AutoRefill negative-option program without clearly disclosing the additional fees, cancellation procedures, or deadlines for avoiding future charges.

The complaint alleges violations of the FTC Act, the Restore Online Shoppers' Confidence Act (ROSCA), the Gramm-Leach-Bliley Act, and Utah and Nevada consumer protection laws. The government seeks injunctive relief, monetary relief, and civil penalties.

Key Takeaways

  • Hidden fees remain an enforcement priority. The action reinforces regulators' focus on advertised prices that exclude substantial mandatory charges, particularly where those charges undermine consumers' ability to compare prices across sellers.
  • Website design is part of the deception analysis. The FTC is scrutinizing not only whether fees are disclosed, but also how they are presented. Disclosures buried below the visible portion of a checkout page may be inadequate, particularly when the purchase flow encourages consumers to proceed without seeing them.
  • Joint federal-state enforcement increases potential exposure. By joining forces with state regulators and alleging violations of statutes beyond Section 5 of the FTC Act, the government can pursue remedies, including civil penalties and monetary relief, that may not be available in a standalone FTC Act deception case. The action also underscores the importance of compliance with state pricing and automatic-renewal requirements.

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NAD's Blissy Decision Reinforces Fundamental Rules on Clinical Claims and Expert Endorsements

A recent National Advertising Division (NAD) decision involving Blissy Silk Pillowcases offers a useful reminder of several fundamental advertising law principles: claims must be supported by evidence that fits the advertised message, references to clinical testing require reliable scientific support, and expert endorsements cannot substitute for adequate substantiation.

NAD evaluated Blissy's claims that its silk pillowcases provide anti-aging, acne-fighting, and hair benefits, along with endorsements from four board-certified dermatologists touting clinical studies and specific product results.

Claims Must Match the Evidence

Although Blissy submitted numerous studies, NAD found that the evidence did not support several of its advertised benefits. For example, studies showing that silk material did not clog pores did not establish that sleeping on Blissy pillowcases prevented or reduced acne. Similarly, subjective consumer assessments and other testing did not adequately substantiate the company's broad anti-aging and wrinkle-prevention claims.

NAD did, however, find support for the general "Less Frizz" claim, relying on laboratory testing corroborated by consumer self-assessments. The distinction illustrates the importance of matching the strength and specificity of a claim to the supporting evidence.

Expert Endorsements Cannot Cure Substantiation Gaps

Blissy's website also featured a section titled "Clinically-Backed Results: Dermatologist & Expert Tested," with endorsements from four board-certified dermatologists citing clinical studies and specific outcomes, including claims that 90% of users experienced clearer skin.

NAD determined that these representations conveyed establishment claims requiring reliable scientific evidence demonstrating the advertised results. Blissy's home-use studies and other testing did not adequately substantiate those clinical outcomes and percentages.

NAD also found that the endorsements conveyed an additional implied message: that the dermatologists had exercised their professional expertise to evaluate Blissy's clinical evidence and determined that it reliably supported the advertised benefits. Because the underlying evidence did not support those conclusions, NAD recommended that Blissy discontinue or modify the challenged endorsements.

Key Takeaways

  • Claims must fit the evidence. Subjective consumer assessments may support appropriately limited perception claims, but objective performance claims require appropriate objective substantiation. Evidence supporting a narrower benefit does not necessarily substantiate a broader claim.
  • Clinical establishment claims require the promised proof. Advertisers claiming that clinical studies demonstrate specific results must possess reliable scientific evidence supporting those results. The mere existence of studies is not enough.
  • Expert endorsements are no substitute for substantiation. Advertisers cannot use experts to make claims they could not substantiate directly. Expert endorsements must also reflect an actual exercise of the represented expertise, particularly when they imply that an expert has evaluated and validated the underlying scientific evidence.

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NAD Takes Aim at Reference Pricing and Countdown Clocks in Guardian Bikes Advertising

False reference pricing claims are familiar territory for consumer class action lawyers, but they appear less frequently in National Advertising Division (NAD) proceedings. In a recent monitoring inquiry involving Guardian Bikes, NAD examined whether the company's advertised "40% off" savings, strikethrough prices, and promotional countdown clocks misled consumers about the discounts actually available.

When Everyday Savings Look Like a Limited-Time Sale

Guardian advertised a Memorial Day promotion featuring "40% OFF KIDS BIKES," strikethrough pricing, free accessories, and countdown clocks indicating when the sale would end.

But the advertised 40% savings did not represent a temporary reduction from Guardian's regular prices. Rather, Guardian generally priced its bikes approximately 40% below a "Comp Value" benchmark calculated using prices of comparable competitors' bikes. The actual limited-time promotion offered five free accessories with a bike purchase.

NAD questioned whether the advertising misleadingly suggested that consumers would receive an additional 40% discount during the Memorial Day sale. It also scrutinized Guardian's use of three consecutive countdown clocks promoting what appeared to be a single sale, potentially creating an artificial sense of urgency. Separately, NAD examined strikethrough prices in promotional emails and checkout pages that did not clearly identify the comparison as based on competitors' prices.

Guardian Agrees to Modify Its Advertising

During the inquiry, Guardian voluntarily agreed to:

  • Clearly disclose that its advertised 40% savings reflected an everyday comparison to competitors' prices, rather than a discount from Guardian's regular prices.
  • Distinguish limited-time promotions, such as free accessories, from its everyday comparative savings.
  • Ensure that countdown clocks accurately identify the promotion's scope and expiration.
  • Revise or remove strikethrough pricing that lacked clear comparable-value disclosures.

NAD concluded that these modifications, if implemented clearly and conspicuously, would help avoid misleading messages about the nature and duration of Guardian's promotions. It also recommended that qualifying disclosures appear with the relevant claims, not contradict the main advertising message, and be repeated where necessary.

Notably, despite Guardian's voluntary modifications, NAD devoted considerable attention to explaining how the changes would address potentially misleading messages about the advertised savings and the urgency of the promotion.

Key Takeaways

  • Reference pricing must clearly identify the basis of comparison. Advertisers may compare their prices to those of competitors, but must make clear that the comparison is not to their own former or regular prices. Strikethrough pricing and percentage-off claims can otherwise imply discounts that consumers are not actually receiving.
  • Countdown clocks must reflect genuine promotional deadlines. Consecutive timers or recurring promotions can create misleading urgency if they suggest that consumers must act immediately to obtain savings that remain available after the timer expires.
  • Pricing practices may be an emerging NAD enforcement priority. Guardian Bikes is one of several recent pricing-related inquiries NAD has initiated through its monitoring program, potentially signaling increased scrutiny of pricing and promotional claims. This focus parallels continued attention to deceptive pricing practices by the FTC and state attorneys general, making pricing claims an important compliance consideration across multiple enforcement forums.

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