On December 20, 2022, the FTC originally noticed its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) on the Federal Register. While the original deadline to submit comments was February 21, 2023, the Federal Trade Commission (“FTC”) extended the public comment period to April 24, 2023.
Continue Reading Green Guides Update – Comments Closed, but the FTC Wanted to Hear More About Waste
For months, Jack Daniel’s has had a bone to pick with VIP Products, the manufacturer of a parody dog toy called “Bad Spaniels.” In Jack Daniel’s Properties Inc. v. VIP Products, claims of trademark infringement and dilution by tarnishment were raised against the dog toymaker. The Bad Spaniels dog toy at the center of this dispute is shaped and colored like a Jack Daniel’s bottle, with similarly stylized labels stating “Bad Spaniels,” “The Old No. 2,” and “on your Tennessee Carpet.” Regardless of one’s whiskey preferences, this case may leave quite the aftertaste on trademark use in expressive works as it rests at the intersection between trademark law and the First Amendment.
Continue Reading Jack Daniel’s in the Doghouse: SCOTUS Opines on First Amendment and Trademark Law
Button cell and coin batteries are ubiquitous. They power countless products that consumers use on a daily basis: key fobs, remote controls, bathroom scales, electronic watches and jewelry, decorative ornaments, flameless candles, and even musical greeting cards. But button cell and coin batteries also pose a unique hazard.
Continue Reading Reese’s Law to Impact Wide Range of Consumer Products
#ICYMI – The Federal Trade Commission (“FTC”) extended the public comment period on its solicitation for public comments regarding potential updates and changes to the Green Guides (Guides for the Use of Environmental Marketing Claims) by 60 days. On December 14, the FTC held an open meeting and voted to notice the public comment period. On December 20, the FTC noticed the public comment period on the Federal Register, which would have originally expired on February 21, 2023. All public comments must now be filed by April 24, 2023.
In an expansion designed to bring its advertising review jurisdiction in line with those of international self-regulatory organizations and enforcers, the National Advertising Division (NAD) has expanded its review authority so that it not only covers the truth and accuracy of national advertising, but also advertising that portrays “negative harmful social stereotyping, prejudice or discrimination.” In so doing, NAD seeks to adapt its review process to permit the review of ads that cause possible social harm based on stereotypical or discriminatory portrayals. Unlike some international bodies, which are not constrained by the First Amendment, NAD proposes to tether its review to such portrayals that may cause harm because they are misleading and inaccurate.
The news of Elon Musk’s $42-44 billion offer to purchase Twitter, and his apparent cold feet, have spread far and wide. Speculation has swirled that his offer was a politically-motivated stunt and that he never intended to actually follow-through with the deal. More recently, however, Musk has publicly demanded more information from Twitter regarding its so-called “bots” and he has publicly suggested that up to 20% of Twitter’s active user base is comprised of fake accounts, in contrast to the 5% that Twitter itself has claimed in its latest annual report. So, is Musk’s stated concern real or a coverup for cold feet?
While some have derided Musk’s demands as pretextual, he has a valid point that the number of real, daily active users on the Twitter platform – actual human eyeballs – is critical to the value of Twitter. A difference of 15% in estimates of bots is likely to be material. Twitter itself has said so.
Continue Reading Does Elon Musk Have a Point? The Impact of Bots on Twitter Revenue.
In the wake murder of George Floyd in 2020 and the demonstrations that followed, brands pledged to support anti-racism and solidarity with the Black community. Some companies professed that they would make large donations to social justice organizations, leading commentators to ponder whether brands were “woke washing.” At the end of Black History Month, the National Advertising Division (“NAD”) announced that it investigated two companies making express claims committing to sizable charitable contributions to ensure that those claims were substantiated. See Niantic, Inc. (Advertising by Niantic Labs), Report #7037, NAD/CARU Case Reports (February 2022) and DoorDash, Inc. (Advertising by DoorDash, Inc.), Report #7036, NAD/CARU Case Reports (February 2022).
Continue Reading NAD Makes Clear that “Woke Washing” is False Advertising
Tuesday, September 14, 2021
Bureau of Competition and Bureau of Consumer Protection
FTC Operations
In 2020, Greenpeace published a major report that purports to show that less than 15% of all plastic, including single-use plastic that is labeled as “recyclable,” is actually recycled in the United States. These dramatic findings kicked off a new wave of putative class action cases against manufacturers who regularly use plastic packaging, much of which is labeled as recyclable. For example, mere days after issuance of the Greenpeace Report, Earth Island Institute sued a group of ten major companies, including Coca-Cola, Pepsi, Clorox and Nestle over the use of plastic packaging that allegedly contributes substantially to plastics pollution in California waterways.
On Monday, the United States District Court for the Northern District of California dismissed one of the more prominent recent cases, which had been filed by Greenpeace itself against Walmart. Greenpeace, Inc. v. Walmart, Inc., No. 21-cv-00754-MMC (Sept. 20, 2021). Greenpeace’s case, brought under the widely-used, California consumer protection law, Cal. Bus. & Professions Code §17200 (“UCL”), sought to hold Walmart liable for making what Greenpeace alleged were false and misleading “recyclable” claims for certain products. Greenpeace alleged that the claims were false, not because the products are not recyclable, because most consumers do not have access to recycling programs that could accept the products for recycling.
Continue Reading Greenpeace Plastics Recyclability Suit Dismissed for Lack of Standing
A new trend in false advertising lawsuits targets specific characterizing flavor claims on the labels of foods and beverages. For example, Frito-Lay was recently sued in California federal court alleging the company’s “Tostito’s Hint of Lime” tortilla chips falsely implies that natural lime is a primary flavoring ingredient and that consumers were misled by various misrepresentations of lime on the product packaging. Kellogg, Hershey, and Bimbo Bakeries were all sued because the “fudge” in their respective products allegedly are produced with vegetable oil substitutes instead of butter and milk, which the complaint alleges is known to consumers as the traditional way of making fudge.
Typically, in these false or misleading flavoring ingredient lawsuits, a plaintiff attempts to represent a class of consumers and alleges they were charged a premium price for the products because of the specific ingredient, based on the misleading representation. The plaintiff generally must also allege that they would not have purchased the product in the first place if they had known that the specific ingredient was missing.