AD-ttorneys@law – November 2020 #3

BakerHostetler
Contact

BakerHostetler

FTC Tries to Clean Out 25 Fake Disinfectant Websites

But all information about scheme masterminds has been wiped away

Less Is More

There are elaborate schemes out there – boy, have we covered them. Misdirection, shadowy behind-the-scenes actors, Russian-doll-nested business entities. Real puzzles.

And then there are schemes where the perpetrators are barely even trying.

The Federal Trade Commission (FTC) recently unveiled a complaint in the Northern District of Ohio against 25 separate websites – run presumably by the same people – that were engaged in the most backyard, low-rent, bargain-basement, basic scheme conceived since the invention of the Internet over a hundred years ago.

The defendants – whoever they are – were playing on COVID-related fears. They set up several websites that appeared to be related to well-known disinfection product brands like Lysol and Clorox (www.clorox-sale.com, www.elysol.com and www.lysolsales.com, to name a few). Consumers would search for the products, see one of the websites sporting all sorts of Lysol- and Clorox-brand art and products, and start purchasing. They were doubtless relieved to find disinfection products that have been in short supply since the COVID pandemic began.

The Takeaway

Unfortunately, consumers were charged for the products as soon as they offered their payment information but were never sent any of the goods they ordered – or occasionally, were sent unrelated and worthless items, like pairs of socks.

When consumers returned to complain, they often found that the site had disappeared. Of course, the scammers boasted no real connection to the parent companies of either brand, and the hosts offered false contact information to consumers and to the authorities.

The FTC’s complaint alleges violations of the Mail, Internet, or Telephone Order Merchandise Rule and seeks “an order permanently banning the defendants from their allegedly illegal conduct, as well as the disgorgement of money they collected through the scheme to provide refunds to defrauded consumers.”

Only problem is, no one knows the identity of the people behind the sites. They seem to have disappeared along with their storefronts.

Sometimes the simplest scam is frighteningly effective.

Intravenous Therapy Company Resolves Prickly COVID Allusions

Stay safe – keep coronavirus tags off your labels

Drink Water Maybe?

Uh … we just don’t get it.

We have a thing about needles. All during our childhood, an allergist pricked our upper arm, week after week, with what felt like a hundred syringes, hoping to discover which North American maple species was making us wheeze during soccer practice – well, we’ve just wanted to avoid needles if at all possible.

Which is why IV Drips is a mystery to us. But to each their own!

IV Drips is a mobile intravenous drip provider that tools around three New York boroughs – New Jersey, Long Island and Miami – offering IVs to customers in their homes. These are treatments meant to hydrate and add nutrients directly to the bloodstream. It’s hard for us to even say, but again, different strokes.

There are drips to cure hangovers, boost energy, help ease food poisoning symptoms and so on. You can even create your own custom drips.

Water Tort-ure?

This unique business got itself stuck with a National Advertising Division (NAD) inquiry related to an inescapable fact of life in 2020: COVID-19.

IV Drips allegedly posted tags with text such as “Protect Yourself & Your Loved Ones Boost Your Immune System,” “Trump Declares National Emergency Over COVID-19” and “Stay Healthy … strengthen your first line of defense with an immunity Drip” – all within the same Instagram post.

These, considered together, “reasonably convey the implied message that IV Hydration Therapy protects users against COVID-19,” maintains NAD.

The Takeaway

If we tried to link back to every article in which we warned about even flirting with COVID-related ad claims, we wouldn’t have room for the rest of the article.

So, we’ll repeat it again. Or – to mix it up a little – we’ll quote NAD: “The U.S. Centers for Disease Control and Prevention (CDC) and the FDA have both stated that there are no approved vaccines, drugs, or investigational products currently available to treat or prevent COVID-19.”

In the case of IV Drips, you’ll note no direct claims were made about the efficacy of the treatments in treating COVID; all it took was the positioning of a statement about the virus near the other claims to set NAD off.

Stay safe, everybody.

NAD referred the case to the FTC and the FDA when IV Drips failed to respond to its initial inquiry, but later relented when the company reached out to the watchdog group and agreed to take down the offending post (and several new ones with related claims).

The Pose Is Prologue

Supermodel asserts Instagram post transformed paparazzo’s shot into personal statement

And Now for Something Completely Different …

The coronavirus, rightly, has consumed all our excess time, and then some. But we don’t want to miss out on the relative pleasures offered by some of our pre-pandemic preoccupations when they crop up here and there.

Take, for instance, the paparazzi lawsuit. Yes, it seemed like a scourge in 2019, but then 2020 came along, put down its beer and gave us a shot of the real thing.

Nonetheless, developments in paparazzi legal battles have continued, and we have some interesting news regarding supermodel Emily Ratajkowski’s dustup with photographer Robert O’Neill.

If you don’t know Ratajkowski, she’s one of the three … shall we say scantily clad women in Robin Thicke’s “Blurred Lines” video, a production that, in the age of woke awareness, stirred up a backlash and has not matured well (go find the video on your own time). Like many celebs who launch their fame through controversial means, Ratajkowski has come to regret her debut; nonetheless, she used her notoriety and talent well and became quite famous. That, of course, has earned her predictable attention from the usual suspects.

A Confederacy of Models

In October 2019, the model was named in a complaint in New York’s Southern District by O’Neill, who accused her of copyright violations when she allegedly posted one of his photos of her to her Instagram account. He had licensed the photo to the Daily Mail but claimed that Ratajkowski had not licensed it from him.

The case chugged along until September 2020, when Ratajkowski filed for summary judgment. O’Neill replied with his own motion for summary judgment a month later, and there have been dueling memoranda in support from both parties since.

While there has been no response from the court to this preliminary sparring, Ratajkowski’s arguments are interesting and echo those from an earlier case we covered featuring supermodel Gigi Hadid. In that suit, Hadid claimed fair use of the photo, arguing that she had done nothing more than repost the image and that reposting “reflected a personal purpose different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity.”

The Takeaway

The case against Hadid ended without the argument ever having been addressed – the photographer failed to demonstrate that he held copyright, and the court tossed the suit. But Ratajkowski seems to have been inspired by her predecessor, perhaps having the defense in mind before O’Neill ever snapped the offending picture.

The photo Ratajkowski reposted depicted her walking down the street holding bouquets of flowers that obscured her face; she added the caption “mood forever” to the bottom of the snap. According to her most recent filing, the pose itself, as well as the caption, transformed the purpose of the photograph sufficiently to trigger a fair use defense. “Rather than merely documenting her location or her clothing,” her reply states, “the [post’s] purpose was to comment on the way Ms. Ratajkowski is constantly hounded by paparazzi like Plaintiff, and how not even shielding her face will stop them from trying to exploit her image.”

Hey – everyone wants creative control. Ratajkowski’s argument places the posture she assumed when she knew the picture was being taken at the center of the legal argument (her caption serves a similar purpose in her account). It’s a bold assertion of power and ownership over her own image.

We’ll let you know if her gambit gets any further than Hadid’s.

Hit ’Em Where They Hope

The trick with multilevel marketing schemes, or MLMs, is that sometimes people are being sold economic success and the lifestyle that comes with it rather than an actual product.

Consider Market America, an MLM founded by former Amway distributor JR Ridlinger and his wife, Loren, that calls itself a “product brokerage” – a convenient title. “The company doesn’t manufacture any one product or specialize in a single service,” the company website maintains. “This concept called, [sic] product brokering, allows us to swing with the marketplace and capitalize on current consumer demands.”

Hey – who doesn’t want to swing, right? Especially when times are a bit desperate. But it isn’t the types of products and services Market America “brokers” that raise concerns; it’s who works to sell the goods and how much they’re getting back for their efforts.

Unidentified Marketing Object

Truth In Advertising, Inc. (TINA), just laid out allegations – which, if true are a devastating critique of Market America – on its website, although the watchdog stopped short of summoning the FTC for a deeper look into the company’s advertising.

TINA maintains that Market America is selling a deeply deceptive vision of success to its prospective UFOs – that stands for UnFranchise Owners, by the way.

TINA claims that it identified a total of 750 deceptive income claims – 450 in 2020 alone – made by Market America, including claims by Ridlinger that his company offered “economic freedom,” a big no-no with the feds.

Other deceptive claims included “#financialfreedom” hashtags used in social media posts, promises of “steady, residual income” in Ridlinger’s personal blog posts, promises of “financial independence” in Google Ads … the list goes on and on.

The database of alleged deceptive claims can be viewed here.

The Takeaway

Ridlinger allegedly pulled down all 750 of the ads after TINA threatened to call regulators.

But please give the full expose’ a read, because the story TINA alleges is bigger than discrete advertisements, and we can’t do justice to all the detail in this article. Unclear startup costs, uncomfortable brushes with the SEC and the FDA, flashy celebrity endorsements (J. Lo! Alicia Keys!), invitations to exploit the economic downturn caused by the pandemic, debt-ridden marketers using credit cards affiliated with Market America – they’re all there.

Oh, and don’t forget to check out the gigantic human-sized hamster wheel.

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.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.