Hunton Retail Law Resource

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

FTC Expands Agency’s Leadership Team with New Consumer Protection Director

Federal Trade Commission Chairman Joseph Simons announced the appointment of Andrew Smith as Director of the agency’s Bureau of Consumer Protection, beginning next week. Smith is Chair of the American Bar Association’s Consumer Financial Services Committee and a Fellow of the American College of Consumer Financial Services Lawyers. From 2001-2004, he served as Assistant to the Director of the Bureau of Consumer Protection and FACT Act Program Manager, leading implementation of the FACT Act rulemaking, proceedings and studies. The vote to install Smith was 3-2, with the FTC’s two democratic commissioners filing statements in opposition.

Advertiser’s Appeal NAD Recommendation to Discontinue Certain Antimicrobial Claims for Petmate Cat Litter Pans

After a challenge by Van Ness Plastic Molding Co., the NAD recommended that Doskocil Manufacturing Company, Inc., (doing business as Petmate) discontinue claims that its Cat Litter Pans have “built-in antimicrobial protection.” Petmate had argued that its claims were literally true because the antimicrobial ingredient in its product was registered with the EPA for use as an antimicrobial active ingredient. The NAD found that simply treating the cat litter with an EPA-registered pesticide does not, by itself, substantiate the product’s specific performance, and that further product testing was required. Petmate responded that it “strongly disagrees with NAD’s decision, stands by its claims and will appeal NAD’s decision to the NARB.”

NAD Weighs in on Battle over Cold Sore Ointment

Responding to a challenge from GlaxoSmithKline Consumer Healthcare L.P., the maker of Abreva, the NAD recommended that Carma Laboratories, Inc., discontinue claims that Carmex Cold Sore Treatment helps heal cold sores. Carma failed to submit any clinical studies, or other form of clinical proof, demonstrating the efficacy of Carmex in healing cold sores. Carma agreed to discontinue a number of the challenged claims, including claims that Carmex speeds healing, shortens symptom duration, prevents cold sores or stops progression of the virus.

NAD Finds That Testing Failed to Back Up “100% Grease Removal” Claim

After a challenge by the maker of Dawn brand dishwashing liquids, the NAD has recommended Colgate-Palmolive Company discontinue claims that Ajax Ultra Dish Liquid provides “100% Grease Removal.” The NAD’s recommendation focused on the strong impact “100%” claims can have on consumers, and raised concerns about the thoroughness of the testing presented in support of this claim: “While the advertiser need not test every conceivable substrate found in kitchenware or utensils, Colgate's testing clearly dealt with only a small fraction of kitchenware and dishwashing situations.” The NAD did not require Colgate to change the name of their product due to the absence of evidence that consumers had actually been misled. Colgate-Palmolive has agreed to comply with the NAD’s recommendations.

NAD Recommends Diversey Discontinue Certain Claims for Cryovac Resealable Storage Bags

The NAD found that Diversey, Inc., lacked reasonable evidence to support strength, durability and resistance to tearing or leaking claims made about its resealable plastic storage bags. The NAD recommended Diversey discontinue its claim that “better minimum thickness” provides for a stronger, more durable bag. The NAD also determined that while the advertiser had a reasonable basis for its claims, “WELDED CORNERS minimize ripped side seams” and “Quart size and larger [Cryovac] bags feature sonically welded zipper corners to greatly reduce…tears,” when used in a non-comparative context it could not support a claim that the welded corners “greatly reduced leaks” and “minimized…leaks.”