Product BottlesConsumer products companies selling personal care products have started receiving demand letters and class action complaints alleging false advertising because of the use of the term “unscented.”   Is this the next class action wave to hit the consumer products industry?

Many personal care products, such as soaps, creams and deodorants, are labeled as “unscented” because the product has no discernible smell.  In the cosmetics industry, the term “unscented” often means that the product contains masking agents (including some fragrances) that cover unpleasant odors from the ingredients, thus making the product neutral or unscented.

But like the term “all natural,” “unscented” has no official definition.  And this is where the problem arises.
Continue Reading Is ‘Unscented’ the New ‘All Natural’?

GMO FoodsWe frequently address issues relating to litigation over products advertised as “all natural” or containing genetically modified organisms, or GMOs. As interest in GMOs has grown (along with related litigation), an initiative known as GMO Answers has published new survey results identifying consumers’ top 10 questions about GMOs. GMO Answers is funded by the members of The Council for Biotechnology Information, which includes several major consumer products companies.

A global market research company conducted a random, national telephone survey of over 1,000 Americans, in which those surveyed were given a list of 23 questions, then asked:  “The following are questions some people have asked about GMOs.  Which of the following questions around the use of GMOs would you be most interested in having answered?
Continue Reading National Survey Identifies Top Consumer Questions on GMOs

TreesOn October 1, 2012, the Federal Trade Commission (“FTC”) issued a revised version of its “Guides for the Use of Environmental Claims,” better known to many as the “Green Guides,”
Continue Reading FTC Chops ‘Green’ Plastic Lumber Claims and Diaper Claims That Fail to ‘Pass the Smell Test’

The FDA caused quite a stir this morning by announcing proposed updates to the Nutrition Facts and Supplement Facts information required for packaged foods and dietary supplements. These changes reflect the first significant changes in the 20 years since nutrition information was first required to be placed on labels in the form of a Nutrition Facts panel or Supplement Facts panel (changes to include trans fats information were initiated in 2006.) First Lady Michelle Obama and FDA Commissioner Margaret Hamburg, M.D. both trumpeted the updates as important changes that will allow consumers to make healthier food choices.
Continue Reading Don’t Go Changing to Try and Please Me…

FRSOn February 25, 2014, the U.S. District Court for the Central District of California dismissed a putative class action against supplement maker The FRS Company and its former endorser, cyclist Lance Armstrong, in the case of Martin v. FRS Company, et al., Case No. CV-13-01456-BRO (MANx).  The Plaintiffs, alleged purchasers of FRS products, claimed that Armstrong’s endorsement of FRS and certain FRS slogans like “Secret Weapon” misled consumers into believing that FRS products were “closely associated” with Armstrong’s “legendary” athletic achievements.  Plaintiffs sued on behalf of a putative nationwide class and attempted to state claims for false advertising, unfair competition, violations of California’s Consumer Legal Remedies Act (CLRA) and breach of warranty.  In a 22-page ruling, the Court rejected each of Plaintiffs’ theories and dismissed the case.

As to the false advertising, unfair competition and CLRA claims, the Court ruled that FRS’s slogans amounted to nothing more than non-actionable “puffery,” and that the claims did not meet the heightened pleading standards of Federal Rule of Civil Procedure 9(b), which applied because each claim sounded in alleged fraud.
Continue Reading Former Lance Armstrong Endorsement of Supplement Company FRS Doesn’t Support False Advertising Class Action, Court Rules

AlmondsLast year saw a trend in consumer class actions attacking advertising for products labeled as “all natural.”  The cases produced mixed results, and the extent to which this theory will succeed remains unclear.  Some cases settled.  See, e.g., Trammell v. Barbara’s Bakery, 12-cv-02664 (N.D. Cal. June 21, 2013).  Others were dismissed.  See, e.g., Rapcinsky v. Skinny Girl Cocktails LLC, 11-cv-6546 (S.D.N.Y. Jan. 1, 2013).  Some were allowed to proceed.  As this litigation unfolds, plaintiffs are trying a new, similar theory — that advertising products as “raw” is misleading.

The dismissals in the “all natural” cases often focused on the plaintiffs’ inability to define “all natural.”  Without a plausible definition, a plaintiff cannot state a cognizable claim that he or she was deceived by the phrase.  See, e.g., Pelayo v. Nestle USA Inc., 13-cv-5213 (C.D. Cal. Oct. 25, 2013).  Dismissals based on this issue appeared to have more success where the product at issue contained synthetic or processed ingredients.  However, cases involving products containing genetically modified organisms, or “GMOs,” seemed more immune to this theory.  See, e.g., Parker v. J.M. Smucker Co., 13-cv-00690 (N.D. Cal. Aug. 23, 2013) (motion to dismiss denied based on the “simple[] argument” that consumers would assume products labeled as “all natural” would not contain bioengineered ingredients).
Continue Reading Consumer Class Actions Trending From Attacking ‘All Natural’ to ‘Raw’