Hunton Retail Law Resource

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

TA Sciences Prohibited from Making False and Unsubstantiated Health Claims

Telomerase Activation Sciences, Inc. (“TA Sciences”) has agreed to stop making certain claims as to the anti-aging and other health properties of two of its supplement products, in response to FTC allegations that it made false or unsubstantiated claims regarding the products’ health benefits. The FTC’s order prohibits TA Sciences from misrepresenting that its products are clinically proven to reverse human aging, prevent or repair DNA damage, restore aging immune systems or increase bone density, or misrepresenting that such evidence or studies exists. The order also prohibits the company from (1) representing that paid commercial advertising is independent programing; (2) failing to disclose material connections between a product endorser and the company; (3) representing that any endorser is an independent user of the product; or (4) helping anyone else make false or misleading health and efficacy claims about its products.

Seeds of Change for FTC Nursery Guides

The FTC is seeking public comment on its Guides for the Nursery Industry (“Nursery Guides”), which address sales and advertising practices for outdoor plants. The FTC is asking for input on the economic impact and continuing need for the Nursery Guides; possible conflicts between the Nursery Guides and state, local, federal or international laws; and the effect of any technological, economic, environmental or other industry changes on the Nursery Guides. Comments must be received by April 20, 2018.

FTC Updates Energy Labeling Rules for Heating and Air Conditioning Products

The FTC has amended its Energy Labeling Rule to contain updated comparability range and cost information for products that include dishwashers, furnaces, pool heaters and room air conditioners. The Rule requires that certain appliances and products feature yellow EnergyGuide labels that provide an estimated annual energy cost, an energy consumption rating, and a range for comparing the highest and lowest energy costs for all similar models. The FTC has set a compliance date of October 1, 2019, for EnergyGuide labels on room air conditioner boxes.

T-Mobile Faces Further Review for Its Holiday Advertisement

The NAD has referred advertising claims by T-Mobile USA, Inc., to the FTC and Federal Communications Commission (“FCC”) for further review after T-Mobile declined to participate in a proceeding before the NAD. The challenged claims appear in a holiday-themed video that depicts AT&T Services, Inc., as an evil “snow miser” who hides in a dark cave and spews a “blizzard” of hidden added fees, restrictions, limits and taxes into the world. The NAD declined T-Mobile’s request to administratively close the proceeding for lack of merit, noting in its decision that it did not consider the whimsical tone of the video or its seasonal nature to be persuasive reasons to close the proceeding.

SharkNinja Declares “Fin” on Certain Advertising Practices

SharkNinja Operating LLC has agreed to comply with the NAD’s recommendation that the company modify certain claims made in infomercials and on its website and product packaging concerning its IONFlex vacuum cleaner. The NAD determined that SharkNinja should caveat claims that the IONFlex “has more suction power overall” than the Dyson V8 to explain that the claim is limited to the products’ extended runtime mode. It also found that the claim that the IONFlex’s warranty “is more than double the length” of the Dyson V8 warranty should state that it applies to the vacuum unit only and not to the battery.

The NAD Takes a Shot at Flu Advertisements

The NAD has recommended that Reckitt Benckiser, Inc., discontinue or modify a commercial regarding its Mucinex Fast Max Cold, Flu and Sore Throat product. The NAD determined that the commercial’s claim that the product treats “pretty much every symptom” of a cold or flu was overly broad. It also determined that a single visual reference to the product was inadequate to limit the claims made in the commercial to the specific Mucinex product variant being advertised. Reckitt Benckiser has agreed to modify is advertisement to address the NAD’s concerns.

NAD Scrutinizes HEPA Testing Technologies and Air Filtration Claims

Guardian Technologies has agreed to discontinue claiming that its Germ Guardian Air Purifier and Replacement Filters offers allergy relief, comes “doctor recommended” and provides High Efficiency Particulate Air (HEPA)-level air filtration. However, Guardian disagreed with the NAD’s findings regarding purported flaws in its internal HEPA-testing technology, and has indicated it will appeal those findings to the National Advertising Review Board.