Many companies use browsewrap or related sign-in agreements to present their terms of service for consumer acceptance. On April 5, 2022, the U.S. Court of Appeals for the Ninth Circuit refined the standard for enforcing terms of service presented on websites via hyperlinks. The decision affects how companies should design their webpages and present their
Made In USA: Increasing Challenges to False or Misleading U.S.-Origin Claims (Repost)
Consumers notice and are more likely to buy products that are marketed as Made in USA, but companies face significant legal risk, negative publicity, and decades of government oversight if they overstate the extent to which their products are made in the United States.
- Companies marketing their products without qualification as Made in USA
National Advertising Division Recommends that Maker of Flashlights Discontinue Comparative Advertising and Made in USA Claims
Takeaways:
- Support any comparative claims and clearly disclose the basis of the comparison.
- Be specific about claims regarding products or components made in the United States.
Last month, the National Advertising Division (NAD), a self-regulatory body, recommended that Telebrands, Corp., discontinue certain advertising claims for the company’s Atomic Beam flashlight, including claims comparing its brightness
National Advertising Division Recommends that VH Nutrition Discontinue Claims for TriDrive Supplement Marketed to Athletes
Takeaways:
- Health-related advertising claims must be supported by competent and reliable scientific evidence, generally consisting of human clinical trials that are methodologically sound and statistically significant to the 95% confidence level.
- Advertising claims must be clearly expressed as ingredient claims if the substantiation addresses only the efficacy of the ingredients in the product, not the product itself.
National Advertising Division Recommends that Maker of Reusable Storage Bags Discontinue Unsupported Comparative Advertising Claims
Takeaways:
- Regulators continue to emphasize that relative comparisons in advertising must be supported by fact-based evidence.
- Each claim in an advertisement remains subject to review by the National Advertising Division.
California Federal Court Rescinds Order Compelling Arbitration in Consumer Class Action Because Arbitration Agreement Prohibited Public Injunctive Relief
Arbitration Poison Pill Spells Doom for AT&T’s Arbitration Hopes
Takeaways:
- California Supreme Court recently held that an arbitration agreement that waives the right to seek public injunctive relief regardless of forum is (1) contrary to public policy and (2) not preempted by the Federal Arbitration Act.
- District Court for the Northern District of California granted a motion to reconsider its earlier order compelling arbitration of putative class action because the arbitration agreement at issue waived consumers’ right to seek public injunctive relief and was, by its terms, not severable from the remainder of the arbitration agreement.
- Parties may agree to arbitrate claims for public injunctive relief, but they cannot agree to waive consumers’ right to assert those claims at all.
- Drafters of arbitration agreements should reconsider poison-pill provisions that invalidate the entirety of the arbitration agreement if only the portion addressing injunctive relief is unenforceable.