AD-ttorneys@law - August 2023


CSPI: Performance Enhancer Supplements Aren’t What They Seem

Manufacturers need to start by including the advertised ingredients

Double-Dog Dare You

Would you eat something called Rauvolfia vomitoria? No? Of course not.

And yet the contrarians at the Center for Science in the Public Interest don’t think you’re getting enough of it. Or to be precise, they don’t think you’re getting the right amount.

Rauvolfia vomitoria, known to the vulgar as the poison devil’s-pepper, is one of five performance-enhancing supplement ingredients that CSPI cites in a recent post summarizing the findings of medical luminaries. (The other ingredients include turkesterone, halostachine, and octopamine, each of which is rich with potential puns that we will not deploy in the interest of time.)

So, what’s wrong with these ingredients?

Eh...Somewhere Between 0 and 300 Percent

Nothing, especially—or at least nothing that the study addresses. Instead, the paper, succinctly titled “Presence and Quantity of Botanical Ingredients With Purported Performance-Enhancing Properties in Sports Supplements,” calls out the insanely varied levels of the ingredients in athletic-enhancing supplements that boast their inclusion. “Forty percent of the products Dr. [Pieter] Cohen and colleagues tested had no detectable levels of the advertised ingredient,” CSPI notes. “In the products with detectable levels, the levels ranged from barely detectable to more than 300 percent of the specified amount.”

If that weren’t enough, among the 50-plus supplements they tested, “seven of the supplements were found to have an ingredient prohibited for use in supplements by the Food and Drug Administration.”

It’s an assault on the basic credibility of a $167 billion global industry—one that often plays fast and loose with transparency and consumer safety (no industry wants to have a Wikipedia entry like this one).

The Takeaway

While “performance enhancement” was the specific subsector targeted by the medical review, CSPI’s letter notes that similar studies on cognitive enhancement and CBD gummies have been conducted, with similar results (by the way, if you’d like to learn more about CBD marketing, listen to our recent podcast episode here).

CSPI isn’t without the signature wry sense of humor favored by exasperated watchdogs everywhere: “The absence of the advertised ingredient in 40 percent of the performance enhancement pills might actually be good news for consumers of those products,” the group writes, “since [the] FDA doesn’t vet the pre-market safety or efficacy of any of these products.”

Check out the post for a list of links to CSPI’s efficacy studies in the industry and a somewhat limp call to Congressional action.

In the meantime, take a good look in the mirror and make sure that your product lines include the ingredients you’re advertising—even if they might be bad for consumers who take them.

Wait...scratch that last part.

American Bike Builder Appeases FTC

Commission smiles on tagline changes that should be second nature by now

Are Made-in-the-USA Claims Mostly Made in the USA?

We’re starting to feel as if we need to dedicate a corner of this newsletter to made-in-the-USA claims; there seems to be an interminable supply of lawsuits and regulatory inquiries on the subject.

However, there are occasional glimmers of hope, including the case of American Bicycle Group, a Chattanooga-based bike manufacturer that was recently brought to our attention by Truth in Advertising, Inc.

Artisanal Conveyance

ABG recently got its get-out-of-jail-free card from the Federal Trade Commission, which had opened an inquiry about the company’s made-in-the-USA claims. TINA saved the receipts, so we can compare before-and-after-inquiry messaging.

The original tagline on the company’s home page read “Handbuilt in the USA” and explained that ABG’s Chattanooga location is where its Litespeed brand bikes were “handmade and assembled” and two other brand-line bikes were “hand-painted and assembled.” “We are committed to USA production,” the original text claimed.

If you’ve been reading our newsletter faithfully, you have an idea what ABG was trying to accomplish here. But for those of you who don’t, we’ll spell it out for you: ABG wanted to brag about its Tennessee roots and talk about its production facility without claiming that the parts it was assembling were manufactured in the US.

But if you’ve been reading our newsletter faithfully, you’ll know that this solution would never be enough for the folks at the FTC.

The Takeaway

We quote—yet again—from the book of Khan:

Manufacturers and marketers should be cautious about using general terms, such as “produced,” “created” or “manufactured” in the U.S. Words like these are unlikely to convey a message limited to a particular process.

To their credit, ABG listened, and it made several revisions that got the company back in the FTC’s good favor. “Handbuilt in the USA” was transformed to “Located in Chattanooga, Tennessee.” Its Litespeed brand bikes were still “handmade and assembled” but used “globally sourced materials.” Likewise with the other brand-line claims. The “committed to USA production” claim was put out to pasture.

These changes satisfied the FTC, which noted in its closing letter to the company that “based on the Company’s actions and other factors, the staff has decided not to pursue this investigation any further.”

So, perhaps there is such a thing as progress. Yes, it came at the business end of an FTC inquiry, but we’ll take it.

Small victories.

Starbucks Gets Venti-Sized Suit Poured Out

But serving-size issue may earn the plaintiff a refill

Caffeine Makes Humans Better

We won’t get into the details, but one of our crack ad-ttorneys@law staff members was once forced to go without caffeine for two weeks. When she returned to civilization, she vowed to slowly build up her caffeine consumption by ordering decaf at first. Under deadline pressure from our editors—well-known taskmasters—she went to a Starbucks to work and ordered a venti decaf drip coffee.

The barista must have misheard her, because they gave her a regular strength venti cup of joe. She consumed it rapidly, thinking the caffeine level would be negligible. Two hours later and she had researched, written, and proofed an entire ad-ttorneys@law newsletter.

Cut off coffee and the species will devolve.

The Four Most Beautiful Words in the English Language

This simple fact made us initially sympathetic to the case of one Kenneth Telesco, of New Rochelle, New York. Telesco purchased a Starbucks Cold Brew Coffee Concentrate product from the local grocery store back in 2021. When he followed the instructions on the label, he immediately felt betrayed. “Plaintiff purchased the Coffee Products, which prominently advertises on its front labels that one bottle ‘Makes 8 Servings When Prepared As Directed,’” his Southern District of New York-filed class action reads. “But according to both the CFR and Starbucks’s own measurements, the Coffee Products only produce 5 servings of coffee per 32 ounce bottle.”

How dare they?!

Well...the answer is complicated. This wasn’t a slack fill case—Telesco was not filing suit because Starbucks was misrepresenting the amount of concentrate in each bottle. No. This case has to do with an alleged (not complicated) math mismatch between Starbucks’ individual product directions and the customary understanding of “serving” as defined by the Food and Drug Administration.

Taking the concentrate in the bottle and following Starbucks’ printed instructions on the label—mix four ounces of concentrate with four ounces of water—will yield eight eight-ounce cups of cold brew. Those instructions are tagged with the statement “makes 8 servings when prepared as directed.” But the nutrition label, and the established RACC value for coffee serving sizes, would mean that the product would only produce 5 servings.

Sounds confusing, but it all resolves if you know what RACC is: the reference amounts customarily consumed, a standard laid out by the FDA that defines serving sizes for all sorts of food and beverage products. The RACC for coffee is 12 ounces. If you follow Starbucks’ instructions, the 32-ounce cold brew concentrate will produce eight eight-ounce servings. But, according to Telesco, “8 fluid ounces is not one serving of coffee, it is two-thirds of a single serving.

“To make the advertised 8 servings,” Telesco continues, “the Coffee Products would have to contain approximately 48 fluid ounces of concentrate, which would produce 96 ounces of coffee, or 8 servings of 12 fluid ounces each, when mixed in a ‘1:1 ratio’ with water as directed. But the Coffee Products purchased by Plaintiff contains only 36 fluid ounces of concentrate. Thus, the Coffee Products are underfilled by 33 percent.” Telesco claims he was misled, which justified his false advertising charges.

The Takeaway

Clearly, Telesco loves his coffee—desperately needs it, it seems. The natural sympathy that we grant to fellow addicts meant that we were on his side at first. But unfortunately his arguments just don’t add up. And the court agreed with us in its order responding to Starbucks’ motion to dismiss.

According to the Southern District, if information on one part of a product label clears up confusing or potentially misleading information elsewhere, the “consumer...cannot pick and choose only information on the bottle that supports their argument as to why they were purportedly misled. Yet, that is exactly the type of argument that Plaintiff offers here.”

“In sum,” the court held, “Plaintiff is essentially trying to state a false advertising claim by attempting to rewrite the product label, while ignoring clear language and other labels on the bottle referencing servings….[S]ince there is no legal requirement that the RACC 12 ounce serving size for coffee must be equal to the serving size companies use for coffee, Plaintiff does not assert a plausible claim.”

The door is open for another cup of justice; however, the Southern District gave Telesco less than a month to submit an amended complaint.

As much as we love the stuff, the one thing we love more than caffeine is a commonsense ruling like this one, which emphasizes the consumer’s responsibility for reading a label and figuring things out.

P&G Product Accused of Looking Environmentally Responsible

But bold new “executional greenwashing” theory gets executed

Just the Feels, Ma’am

Hand it to SnackDragon. Like any great artist or innovator, it’s always reinventing itself and moving forward.

Readers are acquainted with the firm from our endless series of pieces detailing its unique takes on conventional false advertising lawsuits. One interesting approach it pioneered: Take a snack with artificial or alternative flavorings meant to approximate a natural flavor—vanilla, let’s say—and then sue the manufacturer for using the flavorings despite the conscientious disclosure of the “fake” ingredients. The argument is that the flavor of the original was not able to be emulated and that the consumer was robbed by the premium price she paid to get it.

We’ll leave it to you to wonder if such an approach is a clever introduction of subjective taste into the otherwise well-defined legal theory surrounding advertising claims or just an attempt to elicit an early and lucrative settlement. But it’s hard to miss SnackDragon’s use of a similar tactic in one of the firm’s latest class actions.

Dragon v. Butterfly

SnackDragon is representing one Darlene Hangen-Hall, citizen of Erie County, New York, who purchased Gain laundry detergent between 2021 and 2023. Her complaint accuses Procter & Gamble, the manufacturer of the detergent, of greenwashing—but, true to the spirit of a true innovator, the firm has torqued a new spin on the old greenwashing playbook.

Normally, a greenwashing case would attack the discrepancy between a product’s ingredients, manufacturing processes, or effects on the environment and the explicit claims made about the product—its “sustainability,” for instance, or the fact that it is “all natural.” Consumers pay a premium for products that promise to not negatively affect the environment, and when that promise is broken, a suit is sure to follow.

So we can imagine the gleam that came to SnackDragon’s eye when it stumbled on “‘Greenwashing’ or Green Advertising? An analysis of print ads for food and household cleaning products from 1960-2008,” an academic study out of Miami University. The paper purported to measure “the level of ‘greenness’ of advertisements over time” and to identify a new set of qualities underlying green ads. The authors, Jessica Gephart, Mary Emenike, and Stacey Lowery Bretz—hooray for women in science—identify one such quality as the “executional framework, or whether the advertisement ‘looked green.’” The authors go on to describe the executional framework of green advertising as including “images of plants, animals or natural landscapes, intensive use of the color green.”

Hangen-Hall was, according to her complaint, “taken in by the [product package’s] ‘executional greenwashing,’ based on its natural elements such as stylized flowers, leaves, butterflies and intensive use of the color green, and was unaware the Product contained high levels of dioxane, a toxic chemical incompatible with those same natural elements, because of its detrimental effects on the health of humans and the environment.”

She, of course, “would not have purchased the Product or paid as much if the true facts had been known, suffering damages.”

The Takeaway

There’s a problem with the complaint, however, and it serves as the center of Procter & Gamble’s response to the suit in its motion to dismiss filed in late July. “The authority Plaintiff relies on for her ‘executional greenwashing’ theory contradicts her claims,” the company wrote; Gephart, Emenike, and Lowery Bretz’s paper “instead stands for the proposition that express environmental language—which is indisputably absent from the challenged labeling here—is a necessary prerequisite to communicate an ‘executional greenwashing’ message.”

The passage in the original academic study reads: “[A]n advertisement containing an important environmental claim was considered to be the most important feature, and therefore is the minimum criterion for an advertisement to be classified as any level of green. Important environmental claims were identified by the inclusion of the words ‘environment,’ ‘green’ or ‘natural,’ as a prominent feature of the advertisement.”

We don’t think this case looks good for our old friend the SnackDragon, and we struggle to find a standard by which a court will believe that a reasonable consumer would be taken in by the color green and pictures of flowers.

But, as always, we’re happy to include a fair warning to anyone who is contemplating decking their products out in a manner similar to Procter & Gamble’s approach: Avoid butterflies; here be dragons.

Glad Is Sad Over Recycled False Ad Claim

Consumer research is not in the bag, court says

Circling the Arrows

As a counterpoint to the tossed executional greenwashing case above, we present Peterson v. The Glad Products Company et al., a case filed back in the bitter cold of February 2023. Here, the greenwashing claims stuck (at least for the time being), offering fair warning to any company stamping their product “recyclable.”

In 2022, San Francisco denizen Patrick Peterson purchased a box of Glad Recycling Tall Kitchen Drawstring Blue Bags—a type of product familiar to most anyone living in a municipality that mandates recycling.

You can see why he might make the purchase. “The Products’ front label includes the word ‘RECYCLING’ in all capital letters,” the court order notes, “next to an image of a blue trash bag. Below the word recycling, the label states ‘DESIGNED FOR MUNICIPAL USE’ and ‘PLEASE CHECK YOUR LOCAL FACILITIES.’” Moreover, the box includes “the ‘Recycling’ representation on the Product’s front label, as well as the two circling blue arrows, a universally recognized symbol used to identify recyclable goods.”

Much to Peterson’s surprise, “virtually all municipalities ban the use of any trash bag for recycling because the bags themselves are made of LDPE plastic film not recyclable anywhere.” This includes San Francisco, which states, on its recycling instruction web page, “Recycling must be loose, free of a plastic bag liner.”

Future Shock

Peterson sued, leveling a slew of charges under California state law, including unfair competition, false advertising, violations of the Consumers Legal Remedies Act, and oh so much more, based on allegations that the company “schemed to defraud environmentally conscious consumers.”

He sought injunctive relief, without which he claimed he could not “now or in the future rely on the representations on the Products’ labels because he cannot know whether the recyclability claims remain false, and he may reasonably, but incorrectly, assume the Products were improved to be recyclable. or otherwise compatible with municipal recycling.”

In Glad’s motion to dismiss, the company countered that injunctive relief wasn’t necessary, since his accusations demonstrated that he was able to determine whether San Francisco accepted or rejected the use of the bags. The court wasn’t having it.

The Takeaway

The discussion boils down to the court’s simple reply: “It is true that courts...have found that the threat of future harm is not sufficiently imminent where a plaintiff could ‘easily discover whether a previous misrepresentation had been cured without first buying the product at issue.’” Nonetheless, “Courts reject the notion that ‘reasonable consumers engage in exhaustive research before purchasing items or [] that the reasonable consumer standard should require purchasers’ to do so.…Instead, the relevant question is whether Plaintiff can ‘rely on the product’s advertising or labeling in the future.’”

There it is, a tidy lesson for anyone hoping to slap “recyclable”—or any similarly contingent claim—on the side of their product: Your customers are not required to do the legwork to determine whether or not your labeling is true in their particular circumstance. That’s your job.

[View source.]

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.

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