McDonald’s and Wendy’s defeat lawsuit over burger depictions
Recently, we blogged about a lawsuit that accused Arby’s of false advertising by serving roast beef and brisket sandwiches that contained significantly less meat than what was depicted in advertisements. Arby’s may be breathing a sigh of relief right now because McDonald’s and Wendy’s have just prevailed in a similar lawsuit that targeted the depictions of their burgers.
Arby’s roast beef accused of being less plentiful, too well done compared to ads
For the past few years, Arby's Restaurant Group, Inc. touts its fast-food chain with the slogan, “We have the meats.” Now, a class-action lawsuit filed in the Eastern District of New York alleges otherwise. Plaintiff Joseph Alongis accuses Arby's of engaging in unfair and deceptive trade practices by using misleading photographs of sandwiches in its advertising. According to Alongis, Arby's customers receive roast beef and brisket sandwiches with significantly less meat than the amount depicted in advertisements.
Reckitt Benckiser agrees to pay $53 million to end class actions regarding dietary supplement pain relief claims.
Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was interviewed on Round Table Group’s Engaging Experts podcast in an episode entitled “How to Effectively Deal With False Advertising Disputes.” The episode explores various options for responding to false advertising claims and examines the variety of directions a business can take regarding an advertising dispute. Topics include how lawsuits concerning false representations have been filed under the Lanham Act, the founding of the National Advertising Division (NAD), strategies in a well-constructed cease and desist letter, and more.
Andrew Lustigman was quoted in a PacerMonitor article about the recent federal crackdown on false advertising by various brands.
Florida Attorney General Pam Bondi filed a complaint in Miami-Dade County Circuit Court in May against a popular Miami-based restaurant operator for supplying non-locally sourced or sustainable ingredients despite claims to the contrary.
A panel of the National Advertising Review Board (“NARB”) has recommended that Too Faced Cosmetics, LLC (“Too Faced”) discontinue both a claim that its mascara provides for “1,944% more volume” and “before” and “after” photographs displayed on product packaging and online videos advertising their “Better Than Sex” mascaras.
The Federal Trade Commission recently filed a complaint in the United States District Court for the District of Utah against three defendants who purchase hotel room inventory through online travel agencies (“OTAs”) and then market those hotel rooms to consumers on the internet through search engine marketing such as Google.
A recent decision highlights the risk in relying on confidential support, as well the difficulty in substantiating extraordinary cosmetic benefit claims. Benefit Cosmetics recently challenged Too Faced Cosmetics’ advertising before NAD. The challenge was focused on Too Faced’s mascara advertising claims relating to clinic studies, the degree to which the product increased eyelash volume, and the representations made in the advertiser’s use of “before” and “after” comparative photographic demonstrations.
The New York Law Journal (subscription required) published an article authored by Andrew Lustigman titled "Everyone's a Critic: Fake E-Commerce Reviews Undercut the Marketplace"
S.C. Johnson recently brought a challenge before NAD claiming the phrase “World’s Best Glass Cleaner” claim on PLZ Aeroscience’s (“PLZ”) “Sprayway” glass cleaning product packaging was unsubstantiated.
With consumers ever more ingredient-conscious, brands must be careful of how they describe them, particularly when the product may be positioned as a “healthy” version.
The FTC considers review sites to be advertising and will hold marketers responsible for their content
FDA regulations prohibit making drug claims for dietary supplement products even if such claims are supported by scientific evidence. A recent FDA enforcement action involving dietary supplement products promoted to address high cholesterol, hypertension, diabetes, depression and muscle pain claims show that the agency is prepared to take significant steps where manufacturers continue to make drug claims for dietary supplement products, particularly where the facility fails to meet CGMP requirements.
Nautilus advertised its Bowflex TreadClimber exerciser as promoting substantial weight loss. NAD recommended that the broad claim of “All They Had To Do Was Walk” should be discontinued because its weight loss claims failed to sufficiently encompass the need to diet.
While the FTC’s Mail Order Sales Rule pre-dates the Internet by decades, the Rule remains relevant with today’s online marketing practices, particularly for pre-orders. Companies that rely on pre-orders for a concept product need to take careful note of recent action filed by the San Francisco District Attorney against Lily Robotics, Inc. for false advertising and unfair business practices. After acquiring tens of millions of dollars’ worth of capital investment and pre-order revenue for a conceptual drone, the company repeatedly delayed release of the product in 2015 and 2016, and has since failed to produce a saleable product.
Many early stage technology-based companies with promising ideas may compromise substantiating their product’s performance claims with the belief that there is time for compliance down the road. The FTC’s recent case against the marketers of two app-supported smartphone accessories, advertised to accurately measure consumers’ blood alcohol content, and who received funding on Shark Tank, highlights the risk in waiting.
Retailers across the country have been facing private class action lawsuits alleging that certain discount pricing practices constitute false advertising based on the allegation that the discount is fictitious. Discount retailer, Kohl's, recently obtained dismissal of one such action.
Brands must actively monitor the posts by social media influencers, particularly where there is a business relationship, either directly or indirectly, between them.
The Ninth Circuit’s ruling allows selective posting and arranging of content but does not preclude future lawsuits.
Yoplait's challenge to Chobani's television and online advertising reminds that claims which expressly or implicitly disparage a competing product must be accurate and narrowly drawn.
Groupe SEB USA v. Euro-Pro, Case No. 14-137(WD Pa)
Pom Wonderful’s Lanham Act suit over pomegranate-blueberry drink to go forward.