$3.5 Million Cactus Juice Settlement Should be a Warning to Advertisers

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iStock_000038945684SmallIn this health-conscious age, consumers are always on the lookout for new products which will improve wellness and quality of life.  Marketers attuned to this trend may be tempted to increase sales by extolling the virtues of their products, even if health claims are unsubstantiated by scientific testing.  A recent FTC case, however, demonstrates the price that advertisers pay for overstating health claims.

The FTC filed a case against TriVita Inc., a dietary supplement company, for its marketing of the Nopalea cactus juice drink.  The beverage was widely advertised in television infomercials and online as an “anti-inflammatory wellness drink.”  Nopalea includes juice from the nopal cactus, also known as the “prickly pear.” TriVita’s “Chief Science Officer” stated that the nopal cactus is proven to reduce inflammation, which he linked to Alzheimer’s disease, allergies, diabetes, and heart disease.  TriVita sold each 32-ounce bottle of Nopalea for $39.99, plus shipping and handling.

According to the FTC’s complaint, the Nopalea infomercial was one of the most frequently aired commercials in the United States. The ads stated that the juice would relieve pain, reduce swelling in joints and muscles, and improve breathing.  Infomercials featured “customer testimonials” in which individuals stated that Nopalea helped relieve them of symptoms of a wide variety of conditions, including inflammation, chronic pain, respiratory conditions, and skin conditions.  However, the FTC alleged that these individuals were paid for their endorsements, a fact not sufficiently disclosed in the advertisements.  When customers called the toll-free number advertised, sales representatives told customers that Nopalea would make them “pain-free,” according to the FTC’s complaint.  The health representations had not been substantiated with scientific studies at the time they were made.

The FTC filed its complaint and request for permanent injunction on July 10, 2014.  On July 11, the FTC filed a stipulated settlement order in which TriVita agreed to forfeit $3.5 million to the FTC. The order prohibits the defendants from marketing Nopal cactus products using unsubstantiated or misleading health claims, and from using paid endorsers unless any material connection between the individual and the company is clearly and prominently disclosed.

The multi-million dollar settlement in this case should serve as a warning to marketers who are tempted to overstate health claims in order to generate traffic and sales.  The FTC takes health claims seriously and reviews health-related ads with extra scrutiny, so specific claims should only be made when supported by solid, scientific proof, and any paid testimonials should be clearly disclosed.  As the cactus juice company learned, failure to comply with these standards will lead to a prickly situation.

Topics:  Advertising, False Advertising, False Claims Act, Food Labeling, FTC

Published In: Antitrust & Trade Regulation Updates, Communications & Media Updates, Consumer Protection Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jeff Ifrah | Attorney Advertising

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