Hunton Retail Law Resource

This past week, several consumer, self-regulatory and regulatory actions made headlines:

Clearblue Label Not So Clear

A Second Circuit panel affirmed a district court ruling that SPD Swiss Precision Diagnostics GmbH, maker of the Clearblue Advanced Pregnancy Test with Weeks Estimator, violated the Lanham Act. While medical professionals estimate the length of pregnancy by the date of a woman’s last menstrual period, the Clearblue test estimates it by the length of time since a woman ovulated, but does not disclose this difference in measurement. The appeals court rejected Clearblue’s argument that the Lanham Act claim was precluded because it's label and marketing materials had been approved by the U.S. Food and Drug Administration. The case was brought by competitor Church & Dwight Co. Inc.

NAD Recommends Audio Disclosures in Case of First Impression

The Children’s Advertising Review Unit (“CARU”) of the NAD determined that the “EvanTube” YouTube Channels require an audio disclosure before each sponsored video to ensure that children understand that the content they are viewing is advertising. CARU’s decision noted that sponsored videos that have the feel of user-generated content but actually are advertising messages and should be disclosed as such. EvanTube’s sponsors (a young boy and his family) agreed to provide the requested disclosures.

NextAdvisor Fails to Disclose Materials Terms in “Jaw-Dropping” Offer

The NAD recommended that NextAdvisor, Inc., discontinue its claims that “A Jaw-Dropping 10% Cash Back Card Has Arrived.” NextAdvisor, an online research review and advice site that offers information about third-party products, featured the claim in one of the company’s recommendation widgets. The NAD concluded that the claim omitted material limitations on the offer. The NAD learned of the claims through its own monitoring.

HFL Solutions, Inc. Health Claims Not Supported

The NAD recommended that HFL Solutions, Inc., discontinue a number of claims made in its online ads for Blood Sugar Optimizer dietary supplements. HFL’s claims were supported by animal and in vitro studies, both of which the NAD has determined are insufficient to support health claims. The NAD also determined that a clinical trial and the ingredient studies submitted by the advertiser were inadequate to support health-related diabetes claims. The NAD determined that HFL’s claims that its product is “all natural” and “doctor formulated” were supported.

Shoes for Crews Voluntarily Pulls Challenged Claims

Shoes for Crews, LLC, voluntarily decided to discontinue claims that its shoes are “slip-resistant” after Skechers filed a complaint with the NAD. As a result, the NAD did not review the merits of Skechers’ complaint.

American Dream Can Keep Heart Health Claim but Must Modify or Discontinue Others

The NAD recommended that American Dream Nutrition, LLC, change or discontinue certain claims for its PhytoZon Dietary Supplement. While PhytoZon attempted to support its claims with studies related to various ingredients, it did not provide any studies of the supplement itself. The NAD did find that PhytoZon supported its “heart health” benefit claim because of the existence of lutein and lycopene in the product.