Hunton Retail Law Resource

These past two weeks, several consumer actions made headlines that affect the retail industry.

FTC: Come One, Come All to Discussion of 21^st Century Impacts

On June 20, 2018, the Federal Trade Commission announced that it will hold public hearings on competition and consumer protection in the 21st Century. The FTC is looking to assess whether competition and consumer protection laws must change due to recent economic changes, evolving business practices, technological advancements and international developments. According to the FTC, the hearings may identify areas for enforcement and policy guidance, including improvements to the FTC’s investigation and law enforcement processes, as well as areas that warrant additional study. The FTC is soliciting public comments until August 20, 2018, on a variety of related topics; the hearings are set to take place from September 2018 to January 2019.

NAD Refers Two Anti-Aging Supplement Companies to the FTC

On June 13, 2018, the NAD referred claims made by two dietary supplement companies, 2BeUnstoppable and NutriFrontier, to the FTC after they refused to provide substantiation for several claims. The Council for Responsible Nutrition challenged several claims before the NAD, including claims that certain nutrients “have been shown to reverse bone loss” and “where...the cells of your organs grow faster, you basically grow younger every day.” Both companies failed to provide substantiation to the NAD for their claims, or otherwise participate in the NAD’s self-regulatory process.

NAD Puts Oral Rinse Claims Out to Dry

On June 13, 2018, the NAD recommended that oral rinse maker Triumph Pharmaceuticals, Inc., discontinue efficacy claims that its oral rinse relieves dry mouth. Triumph’s oral rinse is marketed as a cosmetic, and the claims were challenged by competitor GlaxoSmithKline Healthcare, L.P., which markets its Biotene “saliva substitute” as a medical device subjected to several clinical trials. The NAD found a variety of Triumph’s “dry mouth” claims were unsubstantiated, but did allow the product name to include the term “Dry Mouth.”

Did You Hear? The NAD Recommends Supplement Company Modify Claims

On June 21, 2018, the NAD recommended that Bel Marra Health discontinue or modify claims that certain vitamins and minerals can reduce damage caused by repeated noise exposure. Bel Marra pointed to several studies it said supported its claims; the NAD noted that ingredients must be present in a product in the same form, amount and application as in the study relied upon. The NAD also recommended that Bel Marra disclose the population at issue in the relevant studies, since its claims and studies connected with noise-related hearing impairment were based on age-related hearing loss.

She Thinks My Tractor Claims Need Substantiation

On June 21, 2018, the NAD determined that Mahindra USA, Inc., had provided a reasonable basis for its “World’s #1 Selling Tractor” and the “#1 Selling Tractor in the World” claims. The NAD recommended that Mahindra include certain prominent disclosures in its ads, including that it excludes certain equipment from its “tractor” category. The NAD recommended that other claims, like “superior protection” and “best value” be discontinued because they lacked substantiation. The NAD also contended with the company’s superiority claims about its warranty, and found that although the company could make truthful claims about its warranty (for example, that it is the “longest”), it could not claim that it had the “best warranty.”