LITIGATION
Anti-Aging Co. Settles FTC Charges
The U.S. Federal Trade Commission (FTC) has reached an agreement with Telomerase Activation Sciences Inc. and its CEO Noel Patton to settle administrative charges alleging the company lacked evidence to support anti-aging and other health claims made in its marketing. The agency asserted that TA Sciences claimed its products provided anti-aging benefits by lengthening short telomeres and thus lengthening the cellular lifespan of normal cells. The products, which were sold in powder, capsule and topical cream forms, retailed between $100 and $600, according to the complaint. Under the agreement, TA Sciences will not make claims unsupported by competent and reliable scientific evidence; the agreement specifically targets claims that a product reverses human aging, prevents or repairs DNA damage, or prevents or reduces the risk of cancer.
Lawsuits Allege Ulta Sells Used Makeup
Ulta Beauty Inc. allegedly sells cosmetics misrepresented as new to "unsuspecting consumers," according to multiple putative class actions. Smith-Brown v. Ulta Beauty Inc., No. 18-0610 (N.D. Ill., E. Div., filed January 26, 2018); Devries v. Ulta Beauty Inc., No. 18-1723 (Ill. Cir. Ct., Cook Cty., filed February 8); Ogurkiewicz v. Ulta Beauty Inc., No. 18-3006 (Ill. Cir. Ct., Cook Cty., filed March 7, 2018).
The lawsuits were spurred by former Ulta employees' social media posts that asserted the store "routinely doctored used beauty products, many of which had been used and returned to the store, in order to deceive consumers into believing the products were new and unused," according to one complaint. The social media posts allegedly claim that Ulta managers instructed their employees to clean returned products "with cotton swabs 'to make [them] look [like] new.'"
"Consumers expect that Beauty Products are new and unused when purchased from retailers, such as Defendant, because, by nature, used Beauty Products are unsanitary and unhygienic, and place them at a risk of contracting disease," one of the complaints asserts. Alleging a variety of unjust enrichment and strict product liability claims as well as consumer-protection statute violations, the plaintiffs each seek class certification, injunctions, damages and attorney's fees.
Marketing Firm to Pay $2 Million to Settle FTC Claims
The Federal Trade Commission (FTC) has announced a $2 million settlement with Marketing Architects Inc. (MAI) to resolve allegations that the firm disseminated deceptive radio advertisements for client Direct Alternative's weight-loss products, including Puranol, PH Plus, Acai Fresh and Final Trim. FTC settled deceptive advertising and illegal billing claims with Direct Alternative in 2016. According to FTC's announcement, "MAI developed and disseminated fictitious weight-loss testimonials and created radio ads for weight-loss products falsely disguised as news stories." Further, the company's inbound call scripts failed to disclose to consumers that they would be enrolled in an automatically renewing program following their purchase. The $2 million settlement will be paid to FTC and Maine and "may be used to provide refunds to consumers harmed by MAI's allegedly deceptive conduct."
Putative Class Action Alleges Monat Products Cause Hair Loss
Monat Global Corp. faces a putative class action brought by consumers alleging the company’s products caused their hair to fall out. Whitmire v. Monat Global Corp., No. 18-20636 (S.D. Fla., filed February 20, 2018). The plaintiffs contend that Monat promotes its hair products as “naturally-based” and “safe” and responds to consumer complaints by referring to hair loss and scalp irritation as part of a “detox” period that provides sales representatives an opportunity to suggest “still more expensive products.” The complaint further alleges that Monat represents the products as free of sulfates and petrochemicals despite purportedly containing both compounds. Claiming violations of Florida's consumer-protection statute, negligence, strict product liability and unjust enrichment, the plaintiffs seek class certification, damages, injunctive relief, attorney's fees, and orders mandaing the removal of misleading claims and inclusion of material safety information.
In addition, Monat has filed a defamation suit against a former sales representative who quit because she allegedly lost her hair after using the products. Monat Global Corp. v. Harrington, No. 18-0008 (E.D.N.C., filed January 26, 2018). The sales rep apparently started a closed Facebook group in which she and others—who assert the products caused “scalp sores and abrasions, hair loss, balding, and are dangerous for pregnant women, or individuals receiving cancer therapy”—could post criticisms about Monat and photos of their alleged injuries. According to BuzzFeed News, more than 12,000 people have joined the Facebook group since November 2017. Claiming commercial disparagement/trade libel/injurious falsehood, defamation and tortious interference with prospective economic advantage, Monat seeks an injunction and an order that the sales rep “release public statements in appropriate forums to ameliorate the negative effects and consumer confusion” caused by her statements.
Court Dismisses Weight-Loss Labeling Claim Against Vitamin Shoppe
A California federal court has dismissed a putative class action against Vitamin Shoppe Inc., holding that state consumer-protection statutes do not provide a private right of action for lack of substantiation claims. Nathan v. Vitamin Shoppe Inc., No. 17-1590 (S.D. Cal., entered February 12, 2018). The plaintiff alleged that the label of Vitamin Shoppe’s Garcinia Cambogia Extract contained the statements “Weight Management” and “Appetite Control,” which led her to believe it was a weight-loss product. The plaintiff had previously filed a lawsuit alleging that the same product was misleadingly marketed because studies have purportedly shown that consumption of garcinia cambogia does not assist with weight loss, but she dismissed that lawsuit before filing a second. Additional details appear in Issues 50 and 51 of this Bulletin.
In addition to holding that she had no private right of action under state consumer-protection laws, the court noted that the “first problem” with the complaint was the assertion that the label statements were equivalent to a representation that the product provided weight-loss benefits. The second problem, the court held, was that the single study cited by the plaintiff that did directly address the label statements used qualifying language that made its conclusion an insufficient basis to raise a plausible claim of falsity or misrepresentation.
Drunk Elephant Eye Cream Violates FDCA, Lawsuit Alleges
A consumer has filed a putative class action alleging Drunk Elephant LLC's Shaba Complex Eye Serum fails to deliver the advertised structural and functional changes to skin. Nguyen v. Drunk Elephant LLC, No. 18-1051 (S.D.N.Y., filed February 6, 2018). The complaint alleges that Drunk Elephant misleads consumers into believing the product will "smooth skin roughness" and "decrease glycation" with several ingredients, including niacinamide, "a potent skin-identical, cell-communicating ingredient that improves skin's elastic feel." Alleging the product is "worthless," the plaintiff asserts that members of the putative class deserve a refund of the full purchase price. She further argues that Drunk Elephant's marketing makes drug claims in violation of the Federal Food, Drug, and Cosmetic Act (FDCA) because the company claims the product will change skin structure. Alleging fraud and false advertising, the plaintiff seeks class certification, an injunction and damages.
Grisi Soaps, Jason Shampoos Targeted in "Natural" Lawsuits
Consumers have filed putative class actions alleging Midway Importing Inc. and Jason Natural Products advertise their products as “natural” despite containing synthetic ingredients. Rivera v. Midway Importing, Inc., No. 18-1469 (C.D. Cal., filed February 22, 2018); Li v. Jason Natural Products, Inc., No. 18-1127 (S.D.N.Y., filed February 8, 2018).
Midway Importing, which sells Grisi soaps, advertises its products as “natural,” but the products contain several allegedly unnatural compounds, including sodium lauryl sulfate, citric acid, titanium dioxide and calcium carbonate. The complaint contends that reasonable consumers would not understand that the four ingredients are synthetic and that the plaintiffs would not have paid a premium for the products had they known of the ingredients. Alleging violations of state consumer-protection laws and the Magnuson-Moss Warranty Act as well as breach of warranties, the plaintiffs seek class certification, injunctive relief, damages and attorney’s fees.
The plaintiffs alleging Jason’s hair products are falsely advertised as “extra gentle” or “all natural” rely in part on the Environmental Working Group's Skin Deep Cosmetics Database to allege that the products contain "toxic" and synthetic ingredients. The complaint also states that, according to the Federal Trade Commission, “it is false and deceptive to advertise or package a product as ‘All Natural’ or ‘100% Natural’ if it contains one or more synthetic ingredients." Claiming violations of New York consumer-protection statutes, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
Putative Class Action Alleges Target Cleansing Towelettes Cause Allergic Reactions
A consumer has filed a putative class action alleging that Target Corp.'s Up & Up Makeup Remover Cleansing Wipes caused swelling, blotches and a burning sensation in her skin, requiring the use of medicine to relieve. McAteer v. Target Corp., No. 18-0349 (D. Minn., filed February 7, 2018). The complaint asserts that Target describes its cleansing wipes as "gentle" and "hypoallergenic" but are "so harsh that they cause users' skin to develop an allergic reaction." Citing the Environmental Working Group's Skin Deep Cosmetics Database, the plaintiff alleges that the products contain "harsh chemicals and known human allergens," including fragrance, hexylene glycol and tocopheryl acetate. The complaint also lists a number of negative online reviews on Target's website and MakeupAlley. Alleging a violation of the Magnuson Moss Warranty Act, negligence, fraud and unjust enrichment, the plaintiff seeks class certification, an injunction, damages and attorney's fees.
SCIENCE
JAMA Op-Ed Calls for Activism Transparency in Nutrition Research
In a JAMA Viewpoint article, researchers from Stanford University have argued that nutrition studies should be transparent about their authors’ financial and non-financial conflicts of interest, including their dietary preferences and activism work.
Noting that “the puritanical view that accepting funding from the food industry ipso facto automatically biases the results is outdated,” the authors briefly call for a financial disclosure registry before shifting to focus on non-financial conflicts of interest. “Advocacy and activism have become larger aspects of the work done by many nutrition researchers, and also should be viewed as conflicts of interest that need to be disclosed,” they assert.
“Therefore, it is important for nutrition researchers to disclose their advocacy or activist work as well as their dietary preferences if any are relevant to what is presented and discussed in their articles,” the researchers argue. “This is even more important for dietary preferences that are specific, circumscribed, and adhered to strongly. For example, readers should know if an author is strongly adherent to a vegan diet, the Atkins diet, a gluten-free diet, a high animal protein diet, specific brands of supplements, and so forth if these dietary choices are discussed in an article.”
“As a general rule, if an author’s living example could be reasonably expected to influence how some readers perceive an article, disclosure should be encouraged,” the article concludes. “Authors who have strong beliefs and make highly committed choices for diet or other behaviors should not hesitate to disclose them. Doing so may help everyone understand who is promoting what and why.”
