On June 25, 2020, the Federal Trade Commission (FTC) announced a $22 million settlement with the marketers of a low-level light therapy device called Willow Curve to enjoin them from making unsubstantiated and deceptive claims about the device’s ability to treat chronic, severe pain and associated inflammation. The settlement comes amid ongoing attention from the FTC and state attorneys general regarding false and deceptive advertising relating to pain products (such advertising is largely reactive to the opioid crisis). It also represents another enforcement action involving “native advertising,” in which paid advertisements are formatted to appear as independent content—a practice that the FTC finds deceptive without clear disclosure.
Continue Reading FTC Enters Into $22 Million Settlement With Manufacturer of Willow Curve Regarding Unsubstantiated Pain Relief Claims and Deceptive Native Advertising
Talcum Powder Case Settles Midtrial
On January 6, 2020, a California state court judge announced that a case against Johnson & Johnson related to allegations that its talcum powder products contained asbestos had settled midtrial. The details of the settlement were not immediately available.
Continue Reading Talcum Powder Case Settles Midtrial
FDA Issues Warning Letters Regarding Adulterated Cosmetics
In September 2019, the FDA sent warning letters to three tattoo ink manufacturers about microbial contamination in the products. The agency conducted microbial analysis of tattoo ink samples collected from customers around the country.
The warning letters noted that the tattoo inks contained pathogens and microorganisms that rendered them adulterated under the Federal Food Drug & Cosmetic Act (FFDCA). The agency regulates tattoo inks as “cosmetics” under the FFDCA because the inks are introduced into the body to “promot[e] attractiveness” or “alter[] the appearance.” See 21 U.S.C. § 321(i).
Continue Reading FDA Issues Warning Letters Regarding Adulterated Cosmetics
Industry Insights: Putting “Pure” Claims in Context
With increasing attention to lawsuits based on “natural” claims, some litigants have also challenged claims that products were “100% pure.” Many suits have attempted to use findings of chemical or pesticide residue to attack a product’s marketing regarding its purity.
While the Food and Drug Administration is yet to provide clear guidance on the term
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.
Agency Beware: False Advertising Liability Applies to Agencies Too
The Federal Trade Commission (FTC) and the State of Maine recently delivered yet another “gut check” to businesses engaging in weight loss advertising, 
obtaining a $2 million dollar settlement against an advertising agency related to allegedly false claims. While challenges related to weight loss claims and related offers are all too familiar for brands, this settlement serves as a heavy reminder to ad agencies that they can also be held responsible for false advertising.
In its complaint against Marketing Architects Inc. (MAI), the FTC and Maine alleged that radio ads created and disseminated by MAI for its client, Direct Alternatives (the maker of Puranol, Pur-Hoodia Plus, PH Plus, Acai Fresh, AF Plus, and Final Trim) made a number of (1) false or unsubstantiated weight loss claims; (2) false or inadequately-disclosed “free trial” claims; and (3) false testimonials or ads disguised as testimonials.
Continue Reading Agency Beware: False Advertising Liability Applies to Agencies Too