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In This Issue:
- Plaintiff Says Splenda 100% Natural Ad Claims Leave a BitterTaste
- Makers of Deceptively Advertised N95 "Color-Changing"Mask That Wasn't Actually N95 To Pay More Than a Million ToSettle
- "100% Pure Avocado Oil" Claims Are Ripe forDiscontinuance, NAD Concludes
- NAD Concludes That TPR MCAT Score Guarantee Is a PerformanceClaim
Plaintiff Says Splenda 100% Natural Ad Claims Leave aBitter Taste
A class action lawsuit accuses the makers of Splenda NaturalsStevia, a sugar alternative, of misleading consumers with the claimthat the product is "100% Natural."
According to the complaint, TC Heartland, manufacturer of thealternative sweetener, falsely marketed the product when itprominently labeled the product "100% Natural" on itspackaging. The complaint indicates that the "100%Natural" claim appears on packaging for a variety of sizes andformats of the product. That claim is misleading, says plaintiff,because the sweetener consists solely of the ingredients stevialeaf extract and erythritol, which do not occur naturally in naturebut rather are produced in factories using biochemicalprocesses.
The complaint notes that following earlier litigation, Heartlandin 2023 began to phase out the "100% Natural" claim, insome instances replacing it with "U.S. Grown" or"Plant Based." Nevertheless, the plaintiffs contend, theproducts bearing the "100% Natural" claim remain on themarket, ready for purchase, and perpetuating deception.
The plaintiff also contends that Heartland, in seeking tojustify the "100% Natural" claim, essentially sought toredefine the term "natural." "Aware from thebeginning that Splenda Naturals Stevia is not '100%Natural,' but wanting to use that marketing claim, Heartlanddevised a plan it hoped would help it avoid liability for themisrepresentation." Specifically, the product packaging andwebsite indicate that under Heartland's "naturalstandard," an ingredient is natural if it's made by"minimal and common processes."
And in characterizing stevia leaf extract and erythritol as"natural" under that standard, the plaintiffs argue,Heartland oversimplified and misrepresented the complex multi-stepnature of the production process.
The complaint acknowledges that the Food and Drug Administrationhas not formally defined the term "natural" but notesthat the FDA has indicated that it considers "natural" tomean that nothing synthetic or artificial has been added to orincluded in the product.
"Natural" remains "one of the most compellinglabeling claims to consumers," says plaintiff. And, thecomplaint asserts, Heartland deliberately labels Splenda with the"100% Natural" claim to capitalize on consumer desire forhealthy, wholesome food.
Key Takeaways
A key issue in the case will be whether the court finds thatHeartland's use of the term "natural" to refer toingredients produced with "minimal and common processing"is misleading to a reasonable consumer. (The court also mayconsider whether the production process used in generating thesetwo ingredients is in fact "minimal and common.") As wesaw in a recent New York federal court decision, the court theregave the advertiser's (Sephora's) definition of"clean," another similarly undefined term,significant weight, holding that the advertiser's definitiongoverned when there was no standardized definition. That seems lesslikely here ... but we shall see.
Makers of Deceptively Advertised N95"Color-Changing" Mask That Wasn't Actually N95 To PayMore Than a Million To Settle
Gaming company Razer will pay the Federal Trade Commission (FTC)more than $1.1 million to atone for the sale of masks the FTC sayswere deceptively marketed as N95 during the height of thepandemic.
The complaint alleges that Razer marketed the "wearable airpurifier" mask it named the Zephyr as an N95 mask providingprotection against COVID, despite the mask never having beenapproved as an N95 mask and the company's lack of competent andreliable scientific evidence on which to base its protectionclaims.
This was no ordinary N95 mask, nor your run-of-the-mill clothmask or fashion fabric mask. The product, which was announced at aconsumer electronics show, was a unique-looking mask made ofplastic with color-changing lights, which one tech journalistcalled "a gaming mouse that youstrap to your face," made by a manufacturer "bestknown for neon-tinged gaming" and consumer tech products.
That company promoted the gadget as a "Surgical N95Respirator" that provided the "highest degree ofsafety." It was advertised as providing "maximumprotection" with "replaceable N95 grade filters."Razer also claimed that it was "lab-tested" for safety,and that it was "FDA-registered and lab-tested for 99%BFE."
According to the complaint, Razer knew that its mask was not anN95 mask and would not be certified as such. It had been warned bya consultant that the N95 designation was not relevant to theproduct and that "the claim will cause confusion." Thecompany was also aware that the mask failed to perform to the N95standard.
Yet, according to the complaint, Razer went ahead withadvertising the mask as N95 protective, primarily on social mediaand elsewhere online. Even as the company's CEO claimed thatthe Zephyr was a "more comfortable, reusable N95, internalcommunications reveal that" Razer allegedly knew that the maskcould not provide an N95 level of protection.
The FTC's complaint alleges that the product was notcertified or approved by any U.S. government agency, including theFood and Drug Administration (FDA), and that Razer's indicationthat the company was "FDA-registered" was misleadingbecause a company's registration "does not mean that theestablishment or the device has been approved by the FDA, that theestablishment or device is in compliance with all FDA regulations,or even that the establishment has sought approval from the FDA forthe device."
Nor was the Zephyr approved as an N95 by the National Institutefor Occupational Safety and Health ("NIOSH"), the agencythat certifies N95 masks in the United States. Razer did not evenseek NIOSH certification, according to the complaint. Having neveracquired the NIOSH N95 designation and the permission to market andsell the Zephyr as an N95 mask, the company's marketing of themask as N95 and of its N95 safety features amounted to falsemarketing, avers the complaint.
Further, testing on the Zephyr showed that the company knew thatthe Zephyr repeatedly failed to reach the N95 standard. Despiteknowing this, the company allegedly decided to remove disclaimersstating that the mask was not an N95 mask, which employees hadproposed including on the product packaging.
Only after journalistic reports, a public outcry, and requestsfrom the FTC and FDA did Razer agree to remove the deceptive N95representation.
Under the proposed settlement, Razer would, in addition topaying the monetary penalty, be banned from making any claims thatthe mask prevents or reduced the likelihood of a COVID infection orthe severity of the virus without prior FDA approval. It alsoprohibits the company from representing any health benefits orperformance benefits without competent and reliable scientificevidence.
Key Takeaways
Though the fevered height of the pandemic and the falseadvertising that came along with it are now past, the FTC continuesto prosecute cases against companies that falsely advertisedCOVID-19 products.
"100% Pure Avocado Oil" Claims Are Ripefor Discontinuance, NAD Concludes
What do you say to an advertiser who hasn't substantiatedtheir "100% Pure Avocado Oil" claims? Holy guacamole!Conversely, what do you say to the challenger who prevailed in theNational Advertising Division (NAD) matter challenging those sameavocado oil claims? Bravocado, of course.
Avocado puns (and reader groans) notwithstanding, NAD sided withthe challenger in a matter that might leave the competition greenwith envy. Challenger and competitor Chosen Foods LLC took issuewith a number of express and implied claims made by Lily of theDesert Nutraceuticals Inc., which produces and sells avocado oilunder the Tropical Plantation brand.
Chosen Foods argued that the term "100% Pure AvocadoOil" conveyed a misleading and unsupported message that theproduct was made solely of avocado oil and contained no other typesof oils. The claim appeared prominently on the front of the bottleabove an image of three avocados (one of which was cut in halfdisplaying the pit) along with additional text on the back of thebottle stating that the product is "100% Pure AvocadoOil" and the oil is "made from Hass Avocados."
NAD first determined that the "100%" language, withits mathematical connotations, imbued the claim with "theauthority of dispassionate and objective certainty of authenticity,purity and origin." The juxtaposition of the claim alongsidethe avocado artwork also reasonably conveyed the messages that theproduct is made exclusively from avocados, doesn't contain anynon-avocado oils, and has the same properties as othernon-adulterated avocado oils. In addition, NAD found that the"made from Hass Avocados" claim on the back of the bottlealso conveys to the consumer that the product is comprised of asingle ingredient.
Chosen argued that the "100% Pure Avocado Oil" claimis not supported, based on the findings of a third-party puritytest by SGS North America, which uses the standards published bythe Mexican government (because there is no established U.S. orinternational purity standard for avocado oil). Indeed, it wasdetermined through the use of this approach to testing thatLily's product is not 100% pure as it includes more acid (i.e.,palmitoleic, stearic, and stigmasterol acids) than permitted by theofficial Mexican standards.
Lily didn't dispute the results of the testing but arguedthat reliance on this standard was inappropriate because itisn't widely used in the industry and is still underdevelopment. Lily instead relied on internationally developedtesting and assurance about the purity of its avocado oil providedby its manufacturer, Ciuti International, and third-partyauthentication testing of the purity of avocado oil performed byEurofins. Noting that the "100%" purity claim requiresreliable testing because of its strong impact on consumers and themessage of certainty, NAD found that Lily's evidence did notprovide the requisite level of substantiation.
First, Lily's internal testing protocol, "whilerigorous," did not support the "100% Pure" claim.Second, while Eurofins chose reliable samples of avocado oil as areference for its tests, there was no evidence as to what markersit used to identify the oil as avocado oil. Without knowing this,NAD could not analyze whether Eurofin's testing sufficientlydemonstrated that no other oils were present. Additionally, Lilyhadn't provided enough information to explain how Eurofin'stesting compared to its own reference sample. Finally, Lilyacknowledged the difficulty of detecting adulterated avocado oilwithout having information on the types of deviations from theavocado oil reference samples Eurofin found acceptable and howLily's oil compared to the reference samples.
Since an oil is considered "100% pure" to consumers ifno other oils are present, the missing information in the testingled NAD to conclude that the advertiser did not provide sufficientsupport for its claim. Accordingly, NAD recommended that Lilydiscontinue the express claim "100% Pure Avocado Oil" andrefrain from conveying the unsupported message that the product is"100% pure."
Key Takeaways
As this matter demonstrates, advertisers should remember thatwhen it comes to substantiating claims, generally the more absoluteand authoritative the claim, the stronger and clearer the evidencein support should be.
NAD Concludes That TPR MCAT Score Guarantee Is aPerformance Claim
NAD recently analyzed a challenge to claims by a testpreparation center in a Fast-Track SWIFT matter tackling a single,well-defined issue.
Blueprint Test Preparation challenged claims made by TPREducation LLC d/b/a The Princeton Review (TPR) that its studentswill "Score a 515+ on the MCAT or add 15 points depending onyour starting score. Guaranteed or your money back."
The challenger argued that these were performance claims thatrequire substantiation, while the advertiser countered that theyare clearly and conspicuously tied to a money-back guarantee sothey aren't performance claims.
TPR relied on a NAD case in which NAD found that a claim clearlyand conspicuously disclosed a guarantee: "Get pregnant withina year with Ava, or get money back." This, said NAD, was amoney-back guarantee rather than a performance guarantee. Incontrast, the claim "one year guarantee of pregnancy"elsewhere on the site did not clearly and conspicuously disclose amoney-back guarantee and so reasonably conveyed a performanceclaim, given that the money-back assurance was only visible througha mouse-over hyperlink.
Performance claims clearly and conspicuously tied to amoney-back guarantee may still require support, said NAD as aninitial matter. And whether the money-back guarantee is clearly andconspicuously disclosed is "crucial" in determiningwhether a claim is performance-based, but it is not the onlyfactor.
NAD emphasized that "[a]s with all claims, a performancemessage tied to a money-back guarantee should be viewed from theperspective of the reasonable consumer, taking into account theentire context in which it appears."
Here, although the money-back guarantee was clearly andconspicuously disclosed in every context in which the claimappeared, NAD determined that TPR also conveyed an affirmativeperformance message that a substantial portion of its test takerscould earn a certain score on the MCAT. NAD found that unlike thedecisions cited by TPR, crucial here was the fact that TPRadvertised very specific quantified claims. The company claimed notonly that its product would be effective, but that it would beeffective in creating particular, quantified results.
Reasonable consumers may expect variance in test scores, wroteNAD, but a claim that makes such a specific promise should besupported by evidence that a substantial portion of consumers whotake TPR's MCAT course will be able to achieve the resultsspecified in the claim. The context where the claimappeared—boldly displayed on the company webpage—alsomattered, as did the fact that the TPR course names include theperformance claim "515+." With this context in mind, NADdetermined that TPR's advertising conveyed a performancemessage (requiring TPR to substantiate the message).
TPR had not included any evidence in the record to substantiatethe challenged claim, so NAD recommended that the companydiscontinue the claim.
Key Takeaways
The crucial factor between whether a "guarantee" oryour money-back claim states a performance claim or simply amoney-back guarantee is, as always, context. If, in context, theadvertiser makes specific performance claims, including, of course,a quantified one, NAD at least is likely to view the promise as aperformance claim and not simply a satisfaction guarantee.
The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.
