Hunton Retail Law Resource

This past week, several consumer actions made headlines that affect the retail industry.

NAD Clears “Clinically Proven” Jelly Belly Sports Beans, Recommends Against Formulation Claims

The National Advertising Division (“NAD”) found that Jelly Belly could support claims that its Sports Bean Energizing Jelly Beans are “clinically proven” to maximize sports performance, but cautioned the company to nix its claims that the beans are “Scientifically Formulated to Maximize Sports Performance.” Although the NAD expressed some hesitations about study methodology, it found that Jelly Belly’s clinically proven claims were supported by a published clinical study. However, after reviewing the Sports Beans’ ingredients, including electrolytes, carbohydrates, Vitamin C and Vitamins B1-B3, and the evidence Jelly Belly provided demonstrating the role of these ingredients in providing energy during intense exercise, the NAD advised the advertiser to abandon its formulation claim. The NAD noted that Jelly Belly failed to offer any studies indicating how the beans would demonstrably maximize sports performance. Jelly Belly responded by stating that it will comply with the NAD’s recommendation.

Nature’s Way Evades Ginkgo Pill False Advertising Suit

Vitamin company Nature’s Way won a lawsuit on summary judgment brought by a plaintiff alleging that the company falsely claimed that its ginkgo biloba pills enhanced consumers’ cognitive health. A U.S. District Judge in California found that the plaintiff could not prove that Nature’s Way misled its customers. The plaintiff’s primary complaint was that Nature’s Way could not substantiate claims that its ginkgo supplements increased mental sharpness. However, the judge found that the plaintiff had only demonstrated that Nature’s Way’s claims were not strongly substantiated, and did not eliminate the possibility that the products provide the promoted benefits.

Wild Planet Foods Agrees to Tuna Slack-Fill Settlement

Wild Planet Foods Inc. agreed to a $1.7 million settlement relating to claims that it under-filled tuna cans in violation of consumer protection laws. The settlement results from a proposed class action lawsuit alleging that Wild Planet filled 5-ounce cans of its Sustainable Seas tuna with less than five ounces of fish. An investigation of these claims included “pressed weight” testing conducted by the National Oceanic and Atmospheric Administration. The proposed settlement is worth approximately $29 per claim.

FTC Offers Full Refunds to Mercola Tanning Bed Owners

The FTC is offering refunds to more than 1,300 purchasers of Mercola indoor tanning beds as the result of a settlement with Dr. Joseph Mercola over claims about their safety. The FTC alleged that Mercola falsely claimed that indoor tanning did not increase the risk of melanoma and that it can reverse the appearance of aging, among other allegations. The refunds will total $2.59 million, and will be awarded to all customers who bought tanning systems after January 1, 2012, and submitted claim forms by October 31, 2016. The settlement also requires Mercola to stop selling indoor tanning systems.