In This Issue:

• 2nd Circuit Affirms Something's Off With Plaintiffs' Suit Against Nature's Bounty for its Fish Oil Claims
• NAD Tackles Broad Unilever Challenge to Dr. Squatch Claims
• NAD Vacuums Away SharkNinja’s Comparative Superiority Claims
• Deeper Dive: 9th Circuit Revives BOOST Glucose Control False Advertising Lawsuit

2nd Circuit Affirms Something's Off With Plaintiffs' Suit Against Nature's Bounty for its Fish Oil Claims

The Court of Appeals for the Second Circuit refused to revive a class action lawsuit alleging that Nature's Bounty misleadingly labeled its supplement as "fish oil," finding that plaintiffs had not plausibly pled their claims that the label would materially mislead reasonable consumers.

Plaintiffs alleged causes of action under New York's General Business Law and California's Unfair Competition Law and False Advertising Law. In the original complaint, plaintiffs alleged that Nature's Bounty falsely advertised its supplement as "fish oil" because Nature's Bounty subjected the supplement to a chemical process that "irrevocably altered" the fish oil from a triglyceride form to an "ethyl ester." The district court dismissed the complaint, and the Second Circuit affirmed that dismissal, rejecting plaintiffs' attempts to revive the suit.

In its reasoning, the panel noted that the complaint's discussion of the molecular differences between triglyceride fish oil and ethyl ester were irrelevant in the evaluation of whether plaintiffs plausibly alleged materially misleading labeling. The complaint lacked any supporting allegations "that make it plausible that a reasonable consumer reading 'fish oil' on the front label of Defendants' product would be misled into thinking the supplement contains only omega-3s in triglyceride form." Instead, the complaint merely made conclusory allegations that consumers care about the distinction between fish oil and ethyl ester, wrote the Second Circuit.

Even if the "molecular distinction" mattered to the reasonable consumer, consumers could merely look at the back label and read that the product contains "ethyl esters," added the panel. "This additional information cures any potential ambiguity from the front label as to the form of the omega-3s in the supplement."

Nor did the court agree with plaintiffs' argument that the back label can't defeat the claim because it contradicts the front label representation, because plaintiffs had to first plausibly allege that the reasonable consumer cares about triglyceride versus ethyl ester fish oil.

Key Takeaways

As the panel initially cited, courts do not expect consumers to look beyond misleading front label representations to discover the truth from the back label. But a complaint must first plausibly allege that the reasonable consumer would find the front label deceptive for the back label to be relevant.

NAD Tackles Broad Unilever Challenge to Dr. Squatch Claims

The year 2023 was a busy one for Unilever and Dr. Squatch—which faced off on multiple challenges before the NAD (and the NARB). This latest was a challenge by Unilever to claims by Dr. Squatch that unlike its "natural" personal care products for men, competing personal care products contain ingredients that are "caustic, harmful, and dangerous." NAD agreed with some of Unilever's complaints, but disagreed with others.

First, Unilever challenged Dr. Squatch's claim that its products contain "no harmful ingredients" and that the company never uses "harmful ingredients or harsh chemicals." NAD found that this was a monadic claim that did not convey the implied message advanced by Unilever that competing products are made with harmful ingredients.

Similarly, NAD found the advertiser's use of a "Sh*t List" of ingredients it omits from its products did not convey a comparative superiority message because it did not reference any other brands. The "Sh*t List's" inclusion of non-chemical ingredients also underscored that this list was the advertiser's "irreverent" way of distinguishing the ingredients in its products rather than a comparative claim.

However, NAD objected to the prominent use of "skull and crossbones" imagery alongside the "no harmful ingredients" claim. Together, these claims reasonably conveyed the message that the "Sh*t List" ingredients are harmful and that other personal care products contain harmful ingredients. NAD recommend this imagery be discontinued.

Unilever also challenged the ingredient claims: "blocks out B.O. without harsh chemicals" and "doesn't burn my armpits or leave me with a rank B.O. mid-day." Unilever argued that these claims are "inescapable references to competing products." NAD disagreed, concluding that these claims, which appear in social media posts, are not disparaging of or comparing the advertiser's products with competing deodorants, and were otherwise supported by the product's ingredient list. Dr. Squatch provided independent laboratory testing showing "no potential for dermal irritation," as well as independent toxicological risk assessments which confirmed the safety of the ingredients.

NAD next turned to an analysis of the claims that "the personal care industry needs cleaning" and that "[f]or generations, traditional mass market brands have been avoiding using natural ingredients in personal care products to make production cheaper and faster." NAD rejected Unilever's argument that the claim "the personal care industry needs cleaning" is an unsupported superiority claim, embracing the advertiser's explanation that the claim in context was a "dad joke" conveying "how the company is changing the personal care industry through its dedication to natural ingredients."

This, reasoned NAD, was a "tongue-in-cheek" claim that the "personal care industry needs cleaning." Though the claim generally referenced the personal care industry, it fell short of conveying a comparative superiority claim. But because Dr. Squatch had not provided any support for the second claim about how for generations "mass market brands have been avoiding using natural ingredients," NAD recommended that this second claim be discontinued.

Finally, NAD drew the line at Dr. Squatch's claims "I'm never going back to aluminum deodorant again" and "[n]o X ALUMINUM X TRICLOSAN X PHTHALATES . . . can't go back to that other junk," which the advertiser had argued were not comparative and simply communicated that some consumers may prefer to avoid aluminum. NAD found that these claims conveyed the falsely disparaging messages that competing mainstream deodorants contain aluminum and are unsafe. Though advertisers may compare ingredients, NAD said it balances this right to compare with the right of an advertiser not to have its product falsely disparaged. Further, the juxtaposition of "imagery of a gloved scientist pouring neon liquids into beakers while calling out the disfavored ingredients in a comparative context ("I'm never going back to aluminum deodorant again") shortly before the use of the word "junk" and an image of a customer throwing away competing products, communicated the message that competing deodorants are caustic and dangerous."

Key Takeaways

This case provides a thorough examination of the line between differentiating one's own product and falsely disparaging competitors. It also makes clear that NAD does not make its decisions reflexively, but will carefully review each claim in context.

NAD Vacuums Away SharkNinja’s Comparative Superiority Claims

Two fierce competitors who meet with some regularity at the National Advertising Division (NAD) were back in the ring thanks to a challenge by Dyson to claims made by SharkNinja about its self-cleaning product the Wandvac Cordless Self-Empty System, a vacuum that can be automatically emptied into the dust bin at its base.

Dyson challenged claims that the Wandvac eliminates dust clouds and provides "100x less dust exposure," arguing that this was a comparative superiority claim against other non "self-emptying" vacuums on the market.

The NAD rejected SharkNinja's argument that this claim was a comparison of the manual versus automatic method of emptying the Wandvac dust cup. The NAD noted that when advertisers make comparisons with an unclear basis, consumers may take away the message that the claim is comparative against competing products in the market.

Here, nothing in the context or claim informed consumers that the advertisement was comparing the Wandvac's own various features. Therefore, consumers could reasonably conclude that the "100x less dust exposure claim" was comparing the Wandvac's dust exposure to competing vacuum systems.

Dyson also objected to depictions of dust clouds in a SharkNinja commercial. The advertisement showed a woman emptying a large dust bin several feet above a trash can and releasing a giant cloud of dust, juxtaposed with a later scene of the Wandvac auto-emptying onto the base with no visible cloud of dust. A caption stated: "Traditional emptying releases dust & allergen into the air."

SharkNinja argued that the dust bin depiction wasn't a realistic depiction of how consumers necessarily empty their bins, but simply highlighted a problem that can occur when emptying a vacuum, and that the "exaggerated nature of the dust plume was deliberate" to make up for the fact that dust is "mostly invisible to the naked eye." NAD concluded that the claim "Traditional emptying releases dust & allergen into the air" was substantiated and that the dust bin depiction, when separated from the "100x" claim, did not convey a "falsely disparaging message."

Reasonable consumers can see how high the dust bin is being held above the trash can in the image and could determine how "their emptying practice is the same or different from the emptying depicted" and, further, could note that holding the dust bin high up can exacerbate the problem. Therefore, the dust bin imagery doesn't convey the message that competitors' vacuums release large amounts of dust into the air.

However, when linked with the "100x" claim, the dust bin image conveyed a comparative message about how much dust is created when using competing vacuums, and NAD recommended that SharkNinja modify its advertisement to avoid linking the 100x claim and the dust cloud imagery.

Dyson also challenged a claim that the Wandvac does not need to be emptied in the same way as traditional vacuums, and that, as a result, the Wandvac creates "no dust clouds. No more dirty work." NAD determined that a reasonable consumer would understand that, at some point, even the Wandvac dustbin would have to be emptied, and a consumer may take away the message that the Wandvac process would be a less messy process than that offered by competing vacuums. The NAD found that this claim was not supported because, although SharkNinja had submitted evidence that the Wandvac "auto-empty" didn't result in dust clouds, "there is no evidence in the record that the same is true when the dust bin is emptied."

NAD also analyzed the challenge to the claim that the Wandvac "base holds up to 30 days of dust & debris." It agreed with Dyson's assessment that this claim reasonably conveyed the message that the dust bin can hold all of a household's 30-day dust and debris accumulation. It noted that because the dust bin is "specifically paired" with the Wandvac, consumers would understand this claim to mean that the base will hold all the dust and debris the vacuum picks up in 30 days.

To support this claim, SharkNinja submitted a debris study, but NAD found it insufficient, noting that the 40 participants selected (some of whom did not complete the study) represented too small a sample size and further noting that the record submitted did not adequately address the representativeness of the participants.

Key Takeaways

Like the Dr. Squatch case also covered in this edition, this case reminds us that NAD will parse claims differently, depending upon context, and that it is more than willing to wade through a host of claims—one by one—to determine their appropriateness.

Deeper Dive: 9th Circuit Revives BOOST Glucose Control False Advertising Lawsuit

The Ninth Circuit Court of Appeals recently overturned the dismissal of a consumer false advertising lawsuit concerning Nestle's BOOST Glucose Control beverages. At issue are three things on the label – "Glucose Control," "designed for people with diabetes," and "helps manage blood sugar" – and a three-judge panel said the words, when taken together, are "sufficient to show that a reasonable consumer could expect the product to exert some benefit on the control and regulation of blood sugar." The unpublished decision may signal shifting interpretations regarding "ambiguous" packaging claims.

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