Nothing Fishy About Whole Foods’ Fish Oil Supplement Product Label

In line with prior precedent, the Second Circuit recently affirmed that the product label for Whole Foods’ fish oil softgel product did not deceptively misstate the quantity of Omega-3s it contained. Foster v. Whole Foods Market Group, Inc., No. 23-285-cv (2d Cir. Dec. 8, 2023). The Court found that because the front label was merely ambiguous, rather than misleading, the challenged claim was not deceptive because reference to the back label would quickly dispel the plaintiff’s alleged confusion.

In Foster, the plaintiff alleged she was deceived into believing Whole Foods’ fish oil softgel product contained 1000mg of Omega-3s based on the close proximity of the statement “Omega-3s EPA & DHA” above the statement “1000mg Per Serving” on the front label. However, the back label revealed that the product actually contained 1000mg of fish oil, and just 300mg of Omega-3s. In affirming dismissal, the Court noted the product’s front label included four subsidiary statements: (1) “Omega-3s EPA & DHA;” (2) “1000mg Per Serving;” (3) “From Small Cold-Water Fish;” and (4) “Molecularly Distilled.” The Court acknowledged that while these statements were all in close proximity, the plaintiff had failed to adequately allege that a reasonable consumer would read “1000 mg Per Serving” only in conjunction with the first line referencing Omega-3s, rather than reading each of the subsidiary lines to independently describe the principal label, “Fish Oil.” As such, the Court found the plaintiff did not adequately allege a reasonable consumer would be misled.

The Court distinguished this case from its prior holding in Mantikas v. Kellogg Co., 910 F.3d 633 (2d Cir. 2018), which had reversed the dismissal of a false advertising case at the pleading stage. In Mantikas, the Second Circuit held that clarifying information on the back label cannot not overcome “clearly inaccurate” factual representations on the front label. Here, the Court found Mantikas did not apply because the product label did not include an “affirmatively inaccurate” statement. Rather, because the challenged claim was at most ambiguous, the additional language on the back label of the product could be considered to clarify any arguable ambiguity on the front.

The ruling in Foster confirms that where a challenged label claim is merely ambiguous, rather than misleading, a product’s front and back labels may both be used to inform consumers regarding the qualities of that product. This is in line with precedent in other Circuits, including recent decisions from the Ninth Circuit.

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Tags: Food and Beverages, Labeling, Marketing, Second Circuit

Second Circuit Serves Up a Win for Subway in TCPA Case

By Jeff Warshafsky on May 14, 2024 Posted in Class Actions, Deceptive Trade Practices

While there might not be such a thing as a free lunch, Subway in 2016 texted a consumer that she could receive a free bag of chips with any purchase. The text let the consumer know she could respond STOP to opt out of the texts, which she did. Despite Subway responding that the consumer had been unsubscribed, several days later Subway texted the consumer again with a link to another promotional offer. The consumer sued on behalf of a putative class for alleged violations of the federal Telephone Consumer Protection Act. The district court dismissed the complaint and, last week, the Second Circuit affirmed the dismissal. Soliman v. Subway Franchisee Advertising Fund Trust, LTD., No. 22-1726 (2d Cir. May 10, 2024).

The TCPA makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227 (b)(1)(A)(iii) (emphases added). But as both the district court and now the Second Circuit found, the putative class action complaint failed to plausibly allege that Subway sent the text messages either (1) using an automatic telephone dialing system (“ATDS”), or (2) using an artificial or prerecorded voice, so the text messages did not fall within the TCPA’s ambit.

On the first point, it was undisputed that Subway did not randomly generate telephone numbers. Instead, it stored a pre-existing list of telephone numbers that were then texted based on randomly generated indexing or coding numbers. In other words, the list of telephone numbers was not randomly generated; it was the selection of which stored telephone numbers to text that was random.

The plaintiff argued that the TCPA’s definition of an ATDS includes numbers randomly drawn from a pre-existing list of numbers, but the Second Circuit disagreed. The TCPA provides that an “automatic telephone dialing system . . . has the capacity . . . (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The Second Circuit easily concluded that the first and third references to “numbers” in this section clearly referred to telephone numbers. While it was less obvious what “number generator” referred to, the Court found that “it would be incongruous for ‘numbers’ to refer to telephone numbers in the first and third mention in the statute, but not the second.” This interpretation also was consistent with the TCPA as a whole, which uses “number” and “telephone number” interchangeably in other sections. Accordingly, Subway’s use of a random number generator to dial pre-stored numbers did not meet the TCPA’s definition of an ATDS.

On the second point, the district court held that a text message is not an artificial or prerecorded “voice,” and the Second Circuit affirmed this holding on appeal too. When the TCPA was enacted, voice was defined as a “sound produced by vertebrates by means of lungs, larynx or syrinx, and various buccal structures.” Further, the TCPA itself reflected that “voice” meant something audible because the statute defines “caller identification information” as information “regarding the telephone number of, or other information regarding the origination of, a call made using a voice service or a text message sent using a text messaging service.” 47 U.S.C. § 227(e)(8)(A) (emphasis added).

Under Soliman, technologies like Subway’s are not subject to the TCPA’s provisions relating to the use of an ATDS or artificial or prerecorded voice. This is a significant victory for companies facing TCPA suits, particularly in the Second Circuit.

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Tags: Class Action, Marketing, Second Circuit, TCPA

Courts Neutralize Baseless Acid Lawsuits

By Jeff Warshafsky on May 7, 2024 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

Over the last few years, hundreds of lawsuits have been filed, and many more threatened, involving advertising claims that a product has no artificial preservatives or flavors. In many cases, the plaintiffs allege such advertising claims are false because the products contain citric acid, malic acid, or other organic acids and natural ingredients.

Plaintiffs in these cases typically allege that these ingredients are produced synthetically, but often fail to plead any factual basis for this assertion. This “shoot first ask questions later” approach is improper. See Fed. R. Civ. P. 11. It also violates the federal pleading standards, as two recent decisions recognized. See Valencia v. Snapple Beverage Corp., 2024 WL 1158476 (S.D.N.Y. Mar. 18, 2024); Trammell v. KLN Enters., 2024 WL 1722243 (S.D. Cal. Apr. 22, 2024).

In Valencia, Judge Cathy Seibel of the Southern District of New York considered whether the plaintiff plausibly alleged that Snapple’s “All Natural” claims on certain products were plausibly deceptive given the product contains citric acid. According to the plaintiff, while citric acid can be derived naturally from citrus fruit, “for over a hundred years, none of the production of citric acid has been natural because it is made beginning with fermentation from the Aspergillus niger mold” and “recovered through numerous chemical reactions with mineral salts and reagents” – a process that the plaintiff alleges renders citric acid “an industrially produced, synthetic ingredient.”

These allegations failed on two fronts. First, the court found that plaintiff’s generalized assertions that citric acid is industrially produced was insufficient to plausibly allege that the citric acid in Snapple’s products is synthetic. As the court explained, “Plaintiff’s bare claim here that citric acid today is made from mold rather than citrus fruit cannot, absent any allegation specific to the Products and absent any basis for her assertion about all citric acid, be sufficient.”

Second, the court found that even if the plaintiff had plausibly alleged that Snapple’s citric acid came from fermentation of Aspergillus niger mold, as opposed to citrus fruit, the complaint did not explain why it would be deceptive to describe such citric acid as natural. Plaintiff did “not allege that the resulting citric acid contains synthetic agents.” Further, “[a] reasonable consumer would not think that a compound found in nature is artificial even if it is produced in a different way than nature produces it, if the way it is produced is that it is derived from a natural product and does not contain anything synthetic.” Accordingly, the court granted Snapple’s motion to dismiss in full.

In Trammell, Judge Marilyn Huff of the Southern District of California reached a similar conclusion about alleged malic acid in Wiley Wallaby Very Berry Licorice. The plaintiff allegedly relied on claims that the products are “Naturally Flavored” and “Free of . . . Artificial Colors & Flavors,” when in fact the products purportedly contain malic acid that allegedly is “derived from petrochemicals.” The court observed that malic acid was listed on the product’s ingredient list, but the label did not say whether the malic acid is natural or artificial or whether it functions as a flavor. It was therefore up to the plaintiff to plausibly allege such facts.

The court agreed with the defendant that plaintiff failed to do so and dismissed the complaint in full. “Plaintiff’s conclusory allegations, without more particularity, are a far cry from raising any factually substantiated allegations that Wiley Wallaby Very Berry Licorice contains artificial malic acid, rather than natural malic acid, and that the malic acid functions as a flavor.”

These cases are a reminder to the plaintiffs’ bar that the time to investigate purported false advertising claims is before suing. Courts should dismiss pleadings that simply assume ingredients are synthetic even though they exist naturally. If a consumer believes otherwise, it is their burden to plead a factual basis for so alleging, and it is their counsel’s ethical obligation only to file complaints or serve demands that are predicated on such facts. Companies who are faced with such spurious allegations should insist that plaintiffs and their counsel comply with these rules and obligations.

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Tags: Class Action, Deceptive Trade Practices, Food and Beverages, Labeling, Marketing, Natural Claims

FTC Appears to Expand AI Regulatory Role into Copyright Matters

By Nolan Goldberg and Michelle M. Ovanesian on November 20, 2023 Posted in Events and Announcements, NAD/NARB/CARU/ERSP

In a recent public comment addressed to the United States Copyright Office, the Federal Trade Commission seemingly expanded upon remarks made at the National Advertising Division back in September that it will aggressively and proactively challenge alleged unfair practices involving artificial intelligence, even if that means stretching the meaning of “unfair” to increase its jurisdiction over such matters.

Read the full post on Proskauer’s Minding Your Business blog.

Tags: Age of AI, AI Regulation, AI technology, algorithmic accountability act of 2023, Big Tech, competition law, Federal Trade Commission (FTC), Generative AI, National Advertising Division (NAD), Privacy Law, technology

That’s a “Wrap”: Second Circuit Upholds Click-Wrap Mandatory Arbitration Provision

By Baldassare Vinti, Jeff Warshafsky, Jennifer Yang, Anisha Shenai-Khatkhate and Jana R. Ruthberg on November 6, 2023 Posted in Arbitration Clause, Class Actions

This past Friday, the Second Circuit reversed a lower court’s denial of a motion to compel arbitration in a putative consumer class action against fintech company Klarna. Edmundson v. Klarna, Inc., Case No. 22-557-cv (2d Cir. Nov. 3, 2023). The panel upheld the enforceability of Klarna’s “click-wrap” mandatory arbitration provision incorporated in Klarna’s terms and conditions. This precedential decision comes amid a surge in putative class actions targeting online services including, for example, subscription programs subject to state auto-renewal laws. For companies that have arbitration clauses in their website user agreements, Edmundson is another tool in the kit to help deter and defeat class actions.

The enforceability of an arbitration clause is a question of contract law and turns on whether the parties assented to the contractual terms. Plaintiffs in these types of cases involving online clickwrap provisions—where consumers accept terms by clicking a button or checking a box—often argue a lack of mutual assent on the basis that the terms of service containing the arbitration clause were allegedly not clearly visible. But the Second Circuit maintains that even absent evidence that a consumer had actual knowledge of the clickwrap terms, the consumer will be bound if (1) notice of the terms was displayed conspicuously enough such that a reasonably prudent person would be on inquiry notice of the terms, and (2) the consumer unambiguously manifests assent through conduct that a reasonable person would understand to constitute assent.

Klarna is a web service that offers shoppers the option to “buy now, pay later.” Plaintiff filed a putative class action alleging that Klarna misrepresented and concealed the risk of facing bank overdraft fees when using that service. When signing up for Klarna’s service, consumers are asked to assent to Klarna’s terms of service, which include a mandatory arbitration clause. Klarna moved to arbitrate plaintiff’s claims, alleging that plaintiff agreed to Klarna’s terms of service at various different points, including when she used a Klarna checkout “Widget” to finalize an online purchase. The district court denied Klarna’s motion to arbitrate, finding that plaintiff did not have reasonably conspicuous notice of and did not unambiguously manifest assent to Klarna’s terms of service, and therefore plaintiff was not bound by the mandatory arbitration clause in those service terms. The Second Circuit reversed and upheld the enforceability of Klarna’s arbitration clause.

First, the panel found the Klarna Widget provided reasonably conspicuous notice of Klarna’s terms of service (and thus the arbitration clause contained therein), sufficient to provide inquiry notice. The Court emphasized that the Widget interface, shown below, is “uncluttered,” the only link it provides is to Klarna’s terms of service, and the consumer is presented with only one button to click: “Confirm and continue.”

The Court noted that this content was all “visible at once,” without needing to scroll down to find notice of Klarna’s payment terms, and since the hyperlink appears directly above the “Confirm and continue” button, a reasonable internet user “could not avoid noticing the hyperlink to Klarna’s terms when the user selects ‘Confirm and continue’ on the Klarna Widget.” The Court further noted that the hyperlink to the terms is set apart from the surrounding information by being underlined and in a color that stands in sharp contrast to the background.

Second, the Court found that plaintiff unambiguously manifested assent to the terms of service by clicking the Widget button to “Confirm and continue.” Specifically, the Court found that reasonable internet users would understand that clicking that button constitutes confirmation that they “agree to the payment terms” as stated conspicuously directly above the button. Conversely, it would be unreasonable for an internet user to see the clear and conspicuous statement, “I agree to the payment terms,” with the button marked “Confirm and continue” directly under it, and not understand that the button is the mechanism by which the user confirms his or her agreement to the linked terms. The Court also pointed to the fact that plaintiff “could not have reasonably believed that the information set forth on the Klarna Widget above the hyperlinked ‘payment terms’ represented all the terms governing her use of Klarna’s service,” and therefore was on inquiry notice that her “agree[ment] to the payment terms” necessarily encompassed more, “and the burden was then on her to find out to what terms she was accepting.” The Court thus held that plaintiff “unambiguously manifested her assent to Klarna’s terms” and, “as a matter of law, [plaintiff] agreed to arbitrate her claims against Klarna.”

The Second Circuit’s decision in Edmundson could not come at a better time for companies who provide online services, including those with auto-renewing subscription programs. Class actions targeting such services have been on the rise, with plaintiffs’ attorneys demanding unrealistic levels of conspicuousness for hyperlinked terms of service. This decision rejects the plaintiffs’ bar’s extreme position and confirms that the practices employed by many companies suffice to put reasonable consumers on notice that they are agreeing to terms of service—including arbitration clauses contained therein—by proceeding with a transaction. Of course, whether arbitration clauses are best for your business should be assessed with counsel, to weigh their benefits against the risk of mass arbitrations.

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Tags: Arbitration Clauses, Class Action, Online User Agreements, Second Circuit

FTC Finalizes Updates to Endorsement Guides, Reflecting Increased Focus on Online Reviews and Social Media Marketing

By Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on July 1, 2023 Posted in Announcements, Deceptive Trade Practices, FTC, Social Media

This week the FTC announced that it finalized its revisions to the Endorsement Guides, which give advertisers guidance on ensuring that their use of endorsements or testimonials complies with the FTC Act. At the same time, the FTC also announced an updated accompanying guidance document, “FTC’s Endorsement Guides: What People are Asking.” While the revised Endorsement Guides still require advertisers to comply with the requirements we previously discussed in our On Notice series, they feature several key additions addressing technological changes in how advertising is conducted, and advertisers’ increased reliance on online reviews, social media, and influencer endorsements.

Some key updates to the Endorsement Guides are described below.

Increased Focus on Online Consumer Reviews

The updated Endorsement Guides specify that advertisers should refrain from “procuring, suppressing, boosting, organizing, publishing, upvoting, downvoting, or editing” consumer reviews of their products in a way that distorts or otherwise misrepresents their products. They also include new guidance on the use of incentivized consumer ratings or reviews. Specifically, the updated Endorsement Guides state that even if an incentivized review is accompanied by a sufficiently clear and conspicuous disclosure, “the practice could still be deceptive if the solicited reviews contain star ratings that are included in an average star rating for the product and including the incentivized reviews materially increases that average star rating.” In such cases, the average star rating would also need to include a clear and conspicuous disclosure.

These additions reflect the FTC’s increased focus on combating deceptive online reviews – a focus it has made clear in recent years through guides for businesses publishing online reviews (Guide for Marketers, Guide for Platforms) and actions against advertisers alleging they posted false positive reviews or suppressed negative reviews. For example, earlier this month, the FTC reached a $4.2M settlement with Fashion Nova, an online fashion retailer, in a case alleging that Fashion Nova suppressed negative reviews from its website.

Based on the FTC’s past guidance, when soliciting and paying for online reviews, companies should avoid:

(1) asking “for reviews from people who haven’t used or experienced the product or services”;

(2) asking “your staff to write reviews for your business”;

(3) asking family and friends for reviews; and

(4) conditioning any incentive to submit a review on the review being positive.

Further, advertisers should not impose additional barriers to reviews or discourage consumers from submitting a negative review instead of a positive one. For example, if an advertiser does not require a consumer posting a positive review to include their date of purchase, the advertiser should not require a consumer posting a negative review to include their date of purchase either.

Expanded Definitions of “Endorser” and “Endorsement”

The revised Endorsement Guides update the definition of “endorser” to include virtual influencers, such as avatars or digital characters, and update the definition of “endorsement” to include fake reviews, statements by virtual influencers, and tags in social media.

These expanded definitions reflect the rapidly changing technological landscape in which advertising is taking place. The FTC’s inclusion of virtual influencers, in particular, will likely become increasingly important as brands continue to explore the use of AI in marketing. While virtual influencers are not all that common yet, many believe this trend may be the future of social media advertising. One particularly famous virtual influencer, Lil Miquela (a brand ambassador for teen retailer PacSun) currently has almost 3 million followers on Instagram, and was named one of Time Magazine’s “25 Most Influential People on the Internet.”

New Definition for “Clear and Conspicuous”

As in past versions of the Endorsement Guides, the updated Guides also require that material connections be “clearly and conspicuously” disclosed. But unlike in past versions, the updated Guides include a definition for what does (and does not) constitute a “clear and conspicuous” disclosure. Specifically, the updated Guides clarify that for a disclosure to be “clear and conspicuous” it must be “difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.” On social media or the internet, the disclosure must be “unavoidable.” The FTC further explains that the disclosure must match the format of the accompanying endorsement. If the endorsement is made visually, the accompanying disclosure must also be made visually; if the endorsement is made audibly, the disclosure must be made audibly. And if the endorsement is made both audibly and visually, the disclosure must be made in the ad’s visual and audio portions.

The new Endorsement Guides also instruct that for a visual disclosure to be “clear and conspicuous,” it must stand out from accompanying text or other visual elements “by its size, contrast, location, the length of time it appears, and other characteristics,” so that it is “easily noticed, read, and understood.” For an audio disclosure to be “clear and conspicuous,” it must be “delivered in a volume, speed, and cadence sufficient for ordinary consumers to easily hear and understand it.”

The new Endorsement Guides further clarify that advertisers may not simply rely on a social media platform’s built-in disclosure tool, if the disclosure provided by that tool is not “clear and conspicuous.”

All these requirements are consistent with the FTC’s past guidance on the use of endorsements on social media. For further discussion of what constitutes a “clear and conspicuous” disclosure under FTC guidance, see our past post on this topic.

Liability for Endorsers and Intermediaries

Though the previous version of the Endorsement Guides made it clear that advertisers could be liable for deceptive advertising by their endorsers or influencers, the updated Guides clarify that the endorsers or influencers, themselves, and intermediaries (like ad agencies and PR firms) may also be liable for making deceptive endorsements. For instance, the FTC added an example in which an influencer who did not limit their statements to their personal experience using a product and did not have a reasonable basis for their broad claim about a product’s efficacy would be subject to liability for the misleading or unsubstantiated representation in the endorsement.

This addition perhaps does not come as a surprise, in light of the FTC’s recent warning letters to individual influencers accused of making deceptive endorsements, which stated that “[i]ndividual influencers who fail to make adequate disclosures about their connections to marketers are subject to legal enforcement action by the FTC.” Nonetheless, it’s an important reminder that everyone involved in the creation of an ad (marketers, agencies, and influencers, alike) has a responsibility to make sure that material connections have been disclosed, and that the endorsement is not otherwise deceptive or misleading.

Special Guidance for Endorsements Directed at Children

The updated Endorsement Guides contain a new section aimed specifically at endorsements in advertisements addressed to children. The Guides state that such endorsements may be of “special concern,” due to the “character of the audience.” As a result, “[p]ractices that would not ordinarily be questioned in advertisements addressed to adults might be questioned in such cases.”

This addition seems to echo recent concerns about the potential effects of social media and influencer advertising on children and teenagers. Marketers whose ads may be aimed at children (or even if not expressly or solely aimed at children, may appeal to children) should be particularly careful with respect to the use of endorsements, reviews, and testimonials.

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While the modernized Endorsement Guides do include many key changes, none are all that surprising in light of the past FTC guidance, warning letters, and actions we have discussed on this blog. Watch this space for best practices on using endorsements and testimonials in advertising, and for updates on actions brought under the new Endorsement Guides.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at bvinti@proskauer.com /212-969-3249

Tags: Deceptive Trade Practices, Endorsements, FTC, Marketing, Social Media

Sweet (But Not Too Sugary) Victory: Court Dismisses Lawsuit Over Sprout Foods Baby Food Labeling

By Baldassare Vinti, Jennifer Yang and Isaiah D. Anderson on January 5, 2023 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims

Judge Richard Seeborg of the Northern District of California recently dismissed a putative class action alleging that Sprout Foods’s nutritional claims on its baby and toddler food labels misled consumers into believing that the products provide physical health benefits. In their complaint, plaintiffs alleged that the products are “harmful both nutritionally and developmentally” due to allegedly high levels of free sugars. In rejecting these claims, the Court found that plaintiffs’ allegations were based on speculative research findings and hypothetical scenarios, which did not adequately allege that defendant’s products are per se harmful. Davidson v. Sprout Foods Inc., No. 22-cv-01050-RS (N.D. Cal. Oct. 21, 2022).

Pointing to statements such as “3g of Protein, 4g of Fiber and 300mg Omega-3 from Chia ALA” and other “nutrient content claims”, plaintiffs alleged that the products’ advertising communicate health benefits for developing children. Using this interpretation as a springboard, Plaintiffs alleged that the products’ advertising is false and misleading because the products contain high amounts of free sugars and are stored in pouches, which plaintiffs allege may be harmful to developing children.

In dismissing these claims, the Court found that plaintiffs failed to describe “at what point ‘high’ sugar content crosses into harmful levels (or even why, in particular, these sugar levels are harmful).” And for their allegations that pouched food may be unhealthy, plaintiffs relied on speculative research findings – for example, that pouches “may lead to long term health risks” or may be harmful if overly relied on by parents. Plaintiffs also did not allege why the purported risks outweighed any potential benefits of the products, such as providing protein or fiber to consumers. Noting that a California Court of Appeal has cautioned against allowing lawsuits to go forward that “rely on inferential leaps and which could ultimately place almost any advertisement truthfully touting a product’s attributes at issue for litigation,” the Court found plaintiffs failed to plausibly allege that the product labels here were false or misleading.

The plaintiffs’ bar is widely targeting health claims, including claims that foods and other goods may pose health risks because they allegedly contain certain ingredients or contaminants. This case serves as a helpful reminder that it is often the dose that makes the poison, and it is not enough for plaintiffs to allege the mere presence of a substance, and speculative possible health risks that may result, to state a claim.

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Tags: California, Class Action, Deceptive Trade Practices, Food and Beverages, Labeling, Marketing

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