Morrison Foerster’s Class Dismissed blog provides insights, recommendations, and timely reports on the latest defense news, developments, and trends in the most current class actions lawsuits and product liability issues that affect consumer-facing companies. Through Class Dismissed, attorneys from our nationally recognized Consumer Class Action and Products Liability practices offer a real-time assessment of the developments in matters that are shaping the industry. This blog examines the full spectrum of consumer-related class action and product liability lawsuits ranging from false advertising, privacy, consumer product safety, ADA, food misbranding, TCPA, environment, retail, and government actions as well as nationwide and multidistrict litigation class actions.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Partner

Adam Hunt is a partner in the Litigation Department of Morrison Foerster’s New York office. His practice focuses on complex litigation, with an emphasis on class action and commercial litigation.

Adam Hunt

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office.Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.Alexandra has significant trial experience. She has first-chaired a one-week jury trial and second-chaired a five‑week jury trial, both involving multiple claims and witnesses. She also has extensive experience in alternative dispute resolution, representing clients at mediations, mandatory settlement conferences, and early neutral evaluations.Alexandra enjoys tracking developments and keeping her clients updated on product liability and personal injury claims, frequently writing or presenting on emerging areas such as autonomous vehicles and smart devices. Alexandra’s experience also extends to professional liability, warranty claims, eminent domain, and construction law.Alexandra earned her J.D. from the University of San Diego School of Law. While in law school, the San Diego Law Review published her comment on the recovery of damages by plaintiffs in a persistent vegetative state, and she also served as a comment editor. She received her B.A. from the University of California, Los Angeles, where she majored in Political Science and minored in Spanish. A San Diego native, she attended a Spanish immersion school through the eighth grade. Alexandra is active in the San Diego community, advising students at a local college. She is also a member of several legal organizations in San Diego, including Lawyer’s Club, the Association of Business Trial Lawyers, and Wallace Inn of Court.

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Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, consumer products, automobiles, and AI. Alexandra’s litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow is a partner in the Litigation Department of Morrison Foerster’s San Diego office. Alexandra litigates product liability matters involving medical devices, pharmaceuticals, automobiles, AI, and robotics. Alexandra's litigation expertise spans the entire case life cycle in both state and federal courts. She handles all phases of discovery, including fact investigation and expert discovery. Alexandra has taken over twenty-five depositions, including experts, plaintiffs, treating physicians, and third-party witnesses. She drafts and argues motions of all types, including motions for summary judgment, motions to quash, and motions for preliminary injunction.

Alexandra Barlow

<div class="videoWrapper"><iframe frameborder="0" class="sticky-video" allowfullscreen="1" title="Meet Penny Preovolos, Litigation Partner" src="https://www.youtube-nocookie.com/embed/hv7hYn-Bl7c?rel=0&showinfo=0;vq=hd1080" title="iframe"></iframe></div>Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products. According to Chambers USA, Penelope has a “great reputation for antitrust and product liability work” and is a “superb all-around antitrust lawyer.”Penelope was named the 2019 Antitrust Lawyer of the Year by the Antitrust, UCL, and Privacy Section of the California Lawyers Association. She was co-chair of MoFo’s antitrust practice for 14 years. She has served as chair of the Antitrust and Trade Regulation Section of the State Bar of California and as a member of the Ninth Circuit Advisory Committee on Local Rules and Operations. She is an editor of and frequent contributor to Morrison & Foerster’s <a href="https://classdismissed.mofo.com/">Class Dismissed blog</a>, as well as a frequent speaker about class action and antitrust issues.More About PenelopePenelope clerked for the Honorable Charles M. Merrill, United States Court of Appeals for the Ninth Circuit. She graduated cum laude from Harvard Law School, where she was executive editor of the Harvard Civil Rights – Civil Liberties Law Review. Penelope was a member of Phi Beta Kappa at the University of California, Berkeley. She was awarded the University Medal, the highest undergraduate honor at the university, as well as the English Departmental Citation (awarded to the outstanding graduate in that department).

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Senior Counsel

Penelope has served as lead counsel in major consumer class actions and antitrust cases for more than 35 years, successfully representing high-profile defendants in antitrust, consumer fraud, and product defect matters. Her clients span a range of industries, including consumer electronics, technology, retail, publishing, food and beverage, cosmetics, and household products.

Penelope A. Preovolos

Zak is an associate in the Litigation Department in Morrison Foerster’s New York office.Zak’s practice focuses on class actions, commercial litigation, white collar defense, government investigations, and antitrust litigation and counseling. He has represented clients before federal and state courts in complex commercial matters, as well as in arbitration tribunals.Zak received his J.D. from New York University School of Law in 2018, where he was inducted into the Order of the Barristers. During law school, Zak also served as the Marden executive editor for the NYU Law Moot Court Board. In 2013, Zak received his B.A. and M.A. in political science from Yale University, receiving honors in his major and the Ellsworth Prize for Best Senior Essay in the Social Sciences.

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Associate

Zak Newman

Mitchell A. Hokanson is an associate in the Litigation Department of Morrison Foerster’s San Diego office.Mitchell’s practice focuses on commercial litigation and consumer class actions. He has extensive experience with civil litigation, including managing day-to-day strategy, propounding and responding to discovery, taking and defending depositions, and engaging in motion practice. He also has experience providing regulatory advice to clients, including pro bono partners and multinational corporations. Mitchell maintains an active pro bono practice.After law school, Mitchell worked as a judicial clerk for Justice Susan M. Carney of the Alaska Supreme Court, where he drafted bench memoranda and opinions on a wide range of state and federal law topics. Prior to joining MoFo, Mitchell worked for another international law firm, where he was a member of the Complex Civil Litigation practice group, in Los Angeles, California.Mitchell received his J.D. from Columbia Law School, where he was honored as a James Kent Scholar and Harlan Fiske Stone Scholar. While in law school he was the senior executive editor of the Columbia Journal of Environmental Law and worked as a judicial intern for Judge Sandra S. Ikuta of the United States Court of Appeals for the Ninth Circuit and Judge George B. Daniels of the United States District Court, Southern District of New York. Prior to that, Mitchell earned his B.A. from Stanford University.

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Mitchell Hokanson

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LinkedIN

Today’s online celebrities—both verified and aspiring—can now become product sponsors with the help of a social-media account, a picture-perfect aesthetic, and several hundred thousand followers. The influencer marketing industry is a multibillion-dollar industry according to some industry reports stating it is projected to generate <a href="https://www.statista.com/statistics/748630/global-instagram-influencer-market-value/">$2.6 billion by 2020</a>. With the number of brand-sponsored influencer posts expected to surpass <a href="https://www.statista.com/statistics/748630/global-instagram-influencer-market-value/">six billion in 2020</a>, it is no surprise that consumer-facing companies have realized the power of leveraging social-media influencers to market their products to an algorithm-curated audience.Social media remains an ideal platform for attracting prospective customers, but participating companies must be aware of regulatory guidelines that apply when sending products and promo-codes to online personalities agreeing to post highly visible endorsements.FTC Endorsement GuideConsumer regulatory agencies have long been monitoring compliance of online endorsements. The FTC’s <a href="https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf">Endorsement Guide</a> addresses the application of Section 5 of the FTC Act (15 U.S.C. 45) to the use of endorsements and testimonials in advertising. For influencers and advertisers to be in voluntary compliance with the law, the FTC Endorsement Guide recommends several important practices, including that:<ul><li>Influencers be bona fide users</li><li>Endorsements reflect honest opinions</li><li>Material connections be disclosed prominently above the “more” button and not buried among other tags, hashtags, or links such that consumers are required to search for disclosures</li><li>Influencers avoid ambiguous disclosures</li></ul>Warnings and Enforcement ActionsIn April 2017, the FTC demonstrated that it was monitoring the accounts of popular influencers by sending out more than <a href="https://www.ftc.gov/news-events/blogs/business-blog/2017/04/influencers-are-your-materialconnection-disclosures">90 letters</a> to celebrities, athletes, and other influencers to educate them regarding their responsibilities under FTC Endorsement Guides and other advertising laws. And in September 2017, the <a href="https://www.ftc.gov/system/files/documents/foia_requests/all_of_the_signed_letters.pdf">FTC sent warning letters</a> to 21 of the influencers previously contacted, citing specific postings of concern.Consumer advocacy and self-regulating advertising groups have also been monitoring influencer non-compliance. For example, in 2018, the Electronic Retailing Self-Regulation Program <a href="http://www.asrcreviews.org/ersp-refers-advertising-for-alo-yoga-to-ftc-for-further-review/">referred direct response for Alo Yoga to the FTC</a> after the yoga clothing line refused to respond to its advertising disclosure recommendations. And in 2016, Truth in Advertising sent a <a href="https://www.truthinadvertising.org/exposure-without-disclosure-cashing-kardashians/">letter</a> to the Kardashians saying it would file a complaint with the FTC if they failed to disclose their post sponsorships.In addition to providing guidance and warnings, the FTC has also brought action against those not in compliance. In 2016, the <a href="https://www.ftc.gov/news-events/press-releases/2016/03/lord-taylor-settles-ftc-charges-it-deceived-consumers-through">FTC brought charges</a> against department store chain Lord & Taylor for using online influencers to post themselves wearing the same dress but failing to require advertising disclosures in those posts. The FTC then approved <a href="https://www.ftc.gov/news-events/press-releases/2016/05/ftc-approves-final-lord-taylor-order-prohibiting-deceptive">a final consent order</a> prohibiting deceptive advertisings.The FTC also <a href="https://www.ftc.gov/news-events/press-releases/2016/07/warner-bros-settles-ftc-charges-it-failed-adequately-disclose-it">settled charges</a> with Warner Bros. after it failed to disclose that it paid online influencers to post gameplay videos. Disclosures were in the video description but not in the video itself. A consent order required audio and text disclosures in future influencer videos.Noteworthy is the fact that the FTC is not only bringing enforcement action against advertising companies, but also influencers themselves. In 2017, the FTC brought its <a href="https://www.ftc.gov/news-events/press-releases/2017/09/csgo-lotto-owners-settle-ftcs-first-ever-complaint-against">first-ever case against social-media influencers</a>, charging the owners of the CSGO Lotto site with deceptively endorsing of its online gambling service without disclosing they jointly owned the company. The influencers settled with a consent order requiring clear and conspicuous disclosure of any material connections with an endorser.The FTC is not the only regulatory agency charging influencers for their posts. In 2018, the SEC also settled charges against professional boxer Floyd Merriweather Jr. and music producer DJ Khaled for failing to disclose payments received to promote coin offerings.Checklist for Choosing an InfluencerThe influencer industry is rapidly growing and drawing mass attention. There is no doubt that this is only the beginning of influencer industry regulation. Companies should review their marketing department practices to ensure they are asking the right questions, including:<ul><li>Have you vetted the influencer? Has your paid high-profile influencer been contacted by the FTC for failing to disclose sponsored ads? Are you working with newer influencers who may be less familiar with disclosure requirements?</li><li>Have you set clear terms? Does your agreement state clearly how much control you have over the influencer’s posts and actions? Has the influencer been instructed on how to properly use the product? Do you have a plan for posting if the influencer uses but does not like the product?</li><li>Are you monitoring influencer posts for compliance? What are the consequences when an influencer fails to follow guidelines? Does your contract include the power to require influencers to pull content down from their channel?</li></ul>These questions address just a few points companies should consider to ensure their use of influencer marketing does not also attract a following from consumer protection agencies.

Nature's Path Foods

Suja Juices

Unilever USA Inc.

Nature’s Path Foods and Sprouts Farmers Market

Iovate Health Sciences, International

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Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy mat

Claudia Vetesi

Claudia focuses her practice on the defense of consumer class actions and on complex commercial litigation, including unfair business competition, false advertising, product liability, and privacy matters. She is currently representing numerous consumer goods manufacturers and retailers in false advertising and mislabeling class actions.

Claudia M. Vetesi

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Bad Influence: Complying with FTC’s Endorsement Guide

Bad Influence: Complying with FTC’s Endorsement Guide

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Today’s online celebrities—both verified and aspiring—can now become product sponsors with the help of a social-media account, a picture-perfect aesthetic, and 

Internet of Things

With privacy and data security issues dominating headlines over the past year, the Federal Trade Commission – the Nation’s top privacy watchdog – has had its hands full. The FTC’s recently released 2018 “Privacy and Data Security Update” reflects this flurry of activity. The report provides an overview of the FTC’s significant 2018 privacy and data security enforcement actions as well as the other tools the agency uses to promote consumer privacy and data security. In summarizing its 2018 activity, the FTC provides insight into its 2019 priorities and its overall approach to consumer privacy and data security. In this alert, we discuss the highlights of the report and key takeaways.

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Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance c

Julie O'Neill

Clients seek out Julie because of her practical advice on cutting-edge issues at the intersection of privacy and consumer protection laws. She provides clients with practical solutions to compliance challenges around a wide variety of both online and offline privacy issues, including tracking, interest-based advertising, geo-targeting and other mobile tracking, personalization, and cross-device tracking. Recognized in The Legal 500 US 2014, 2016, 2019, and 2020 and Chambers USA 2021 for her exceptional legal work, her clients praise her saying, “She is really good at giving practical, targeted advice and taking stock of what the risk profile of the client is, so that the advice is holistic.” (Chambers USA 2021).

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FTC Releases 2018 Privacy and Data Security Update Report

FTC Releases 2018 Privacy and Data Security Update Report

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With privacy and data security issues dominating headlines over the past year, the Federal Trade Commission – the Nation’s top privacy watchdog – has had its ha

Privacy

The cost for violating the Children’s Online Privacy Protection Act (COPPA) has been steadily rising, and companies subject to the law should take heed. Last week, the Federal Trade Commission (FTC) announced a record-setting $5.7 million settlement with the mobile app company Musical.ly for a myriad of COPPA violations, exceeding even the December 2018 $4.95 million COPPA settlement by the New York Attorney General. Notably, two Commissioners issued a statement accompanying the settlement, arguing that the FTC should prioritize holding executives personally responsible for their roles in deliberate violations of the law in the future.COPPA is intended to ensure parents are informed about, and can control, the online collection of personal information (PI) from their children under age thirteen. Musical.ly (now operating as “TikTok”) is a popular social media application that allows users to create and share lip-sync videos to popular songs. The FTC cited the Shanghai-based company for numerous violations of COPPA, including failure to obtain parental consent and failure to properly delete children’s PI upon a parent’s request.

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Thank You, Next Enforcement: Music Video App Violates COPPA, Will Pay $5.7 Million

Thank You, Next Enforcement: Music Video App Violates COPPA, Will Pay $5.7 Million

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The cost for violating the Children’s Online Privacy Protection Act (COPPA) has been steadily rising, and companies subject to the law should take heed. Last we

Most companies are familiar with the Children’s Online Privacy Protection Act (COPPA) and its requirement to obtain parental consent before collecting personal information online from children under 13.  Yet COPPA also includes an information deletion requirement of which companies may be unaware.  On May 31, 2018, the Federal Trade Commission (FTC) published a <a href="https://www.ftc.gov/news-events/blogs/business-blog/2018/05/under-coppa-data-deletion-isnt-just-good-idea-its-law?utm_source=govdelivery">blog post</a> addressing this requirement, clarifying (i) when children’s personal information must be deleted and (ii) how the requirement applies, as well as (iii) recommending that covered companies review their information retention policies to ensure they are in compliance.<ol type="i"><li>COPPA’s information deletion requirement.  The FTC clarifies that, under Section 312.10 of COPPA, companies may retain children’s personal information “for only as long as is reasonably necessary to fulfill the purpose for which the information was collected.”  After that, a company must use reasonable measures to ensure such personal information is securely destroyed.</li><li>Application of the deletion requirement to children’s outdated subscription information.  In its post, the FTC applies the deletion requirement to the example of a subscription-based app directed to children under 13.  If the subscription period ends, and a parent decides not to renew the service, can the company keep the child’s personal information?  The answer, the FTC confirms, is “no”:  the information is no longer “reasonably necessary” to provide the app’s services, so it must be deleted.  This is true regardless of whether a parent affirmatively requests deletion.</li><li>Recommendation to review information retention policies in light of the deletion requirement.  The FTC recommends that companies review their information retention policies with COPPA’s deletion requirement in mind.  It lists questions to help guide companies as they navigate this requirement: <ul><li>What types of personal information are you collecting from children?</li><li>What is your stated purpose for collecting the information?</li><li>How long do you need to hold onto the information to fulfill the purpose for which it was initially collected? For example, do you still need information you collected a year ago?</li><li>Does the purpose for using the information end with an account deletion, subscription cancellation, or account inactivity?</li><li>When it’s time to delete information, are you doing it securely?</li></ul></li></ol>Key takeaway.  If a company possesses personal information collected online from a child under 13, and the information no longer serves the purpose for which it was collected, the company must delete it.  Companies should review their information retention policies to ensure compliance with this COPPA requirement.

Don’t Forget to Hit “Delete”: FTC Blog Post Clarifies COPPA Information Deletion Requirement

Most companies are familiar with the Children’s Online Privacy Protection Act (COPPA) and its requirement to obtain parental consent before collecting personal 

Don’t Forget to Hit “Delete”: FTC Blog Post Clarifies COPPA Information Deletion Requirement

On November 2, 2016, a Florida Federal District Court issued a $29 million judgment against the marketer of Pure Green Coffee extract weight-loss pills in a deceptive advertising suit brought by the Federal Trade Commission. District Court Judge Steven Mayberry of the Middle District of Florida ordered defendant Nicholas Congleton to disgorge $29 million in net revenue for deceptively marketing Pure Green Coffee extract pills with debunked scientific research, fake news sites, and paid testimonials all touting the pills’ weight-loss benefits.Congleton created a business selling Pure Green Coffee extract pills after watching an episode of the “Dr. Oz” television show on the purported benefits of the product. Congleton and his co-defendants created a company, built a website, and spent over $9 million on advertising.  Congleton advertised Pure Green Coffee as providing “[t]remendous weight loss results,” such as “sixteen percent of body-fat in twenty-two weeks” and “twenty pounds in four weeks.”  In fewer than two years, Congleton’s business generated $33.8 million in revenue.The FTC sued Congleton alleging four different false advertising claims, and moved for summary judgment. The Court granted the FTC’s motion for summary judgment on all claims, finding in each one that Congleton failed to raise a disputed fact.False Claims of Health Benefits.  The Court agreed with the FTC’s claim that Pure Green Coffee advertisements made false or unsubstantiated claims regarding the health benefits or efficacy of their Pure Green Coffee extract pills.  Citing the analysis of its nutrition expert that Pure Green Coffee’s claims were “biologically implausible,” the FTC argued that the claims could not be substantiated with competent and reliable scientific evidence, and would therefore likely mislead a reasonable customer.  Because Congleton admitted that Pure Green Coffee’s efficacy claims lacked a scientific basis and he failed to rebut the FTC’s expert, the Court granted summary judgment in favor of the FTC on this claim.False Claims of Scientific Basis.  The Court also granted summary judgment as to FTC’s claim that Congleton’s advertisements created an “overall impression” that Pure Green Coffee’s efficacy was backed by scientific evidence.  The Court agreed with the FTC that Pure Green Coffee’s ads featuring a man wearing a white doctor’s coat and stethoscope holding a pill, along with references to a “study” using terms including “double-blind,” “randomization,” and “proven results” that created the misleading impression that Pure Green Coffee’s benefits could be proven scientifically.Deceptive Testimonials.  The Court granted summary judgment as to FTC’s allegation that Pure Green Coffee’s ads deceptively used “testimonials” by purported “real people” who were, in fact, paid to appear and promote the product.  The Court found the fact that Pure Green Coffee’s testimonialists were compensated was a material fact; the Court also found that a reasonable customer would likely rely on the testimonials, given their prominent placement in Pure Green Coffee’s advertisements.Fake News Site.  The Court agreed with the FTC that Pure Green Coffee’s fake news site, purportedly written by a Women’s Health Journal columnist offering an review of the product’s efficacy, would likely mislead a reasonable consumer.  Congleton admitted that the article was false, and that he had no idea if the article’s author actually existed.Congleton Individually Liable for $29 Million.  The Court found that, because Congleton directly oversaw Pure Green Coffee’s marketing campaign and was aware of the advertisements’ falsehoods and misrepresentations, he was individually liable for the deceptive acts of the corporate enterprise he created.  The Court rejected Congleton’s arguments that the advertisements constituted mere “puffery” and that the FTC was required to show that actual consumers were misled.

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Court Issues $29 Million Judgment Against Pure Green Coffee Weight-Loss Pills in FTC Deceptive Advertising Suit

Court Issues $29 Million Judgment Against Pure Green Coffee Weight-Loss Pills in FTC Deceptive Advertising Suit

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On November 2, 2016, a Florida Federal District Court issued a $29 million judgment against the marketer of Pure Green Coffee extract weight-loss pills in a dec

False Advertising

The Federal Trade Commission’s recent workshop on drones raised familiar issues related to the privacy implications of a new and evolving technology. While the many potential innovations and consumer benefits of drone technology were highlighted, the workshop’s focus was on whether drones raise unique privacy considerations and, if so, how such considerations should be addressed.

FTC Workshop on New Drone Technologies Raises Familiar Privacy Issues

The Federal Trade Commission’s recent workshop on drones raised familiar issues related to the privacy implications of a new and evolving technology. While the 

FTC Workshop on New Drone Technologies Raises Familiar Privacy Issues

Aviation & Drones

Consumer Products

Retail

It is easier than ever to identify a consumer with just a few pieces of seemingly innocuous information.  Advances in big data analytics, combined with the increasing volume of data generated by consumers in their daily lives, have “increasingly blurred [the] line” between personally identifying information (PII) and non-PII, according to a recent speech by Federal Trade Commission (FTC) Chairwoman Edith Ramirez.  She expanded on her point by expressly stating that the FTC “now regard[s] data as personally identifiable when it can be reasonably linked to a particular person, computer, or device.”  According to the Chairwoman, “[i]n many cases, persistent identifiers, such as device identifiers, MAC addresses, static IP addresses, and retail loyalty card numbers meet this test.”

The Scope of “Personally Identifiable Information” Is Changing

It is easier than ever to identify a consumer with just a few pieces of seemingly innocuous information.  Advances in big data analytics, combined with the incr

The Scope of “Personally Identifiable Information” Is Changing

As we have previously reported, FDA is currently seeking public comments on the use of the term “natural” on food labeling (see our previous post <a href="http://classdismissed.mofo.com/food-misbranding/california-supreme-court-opens-the-door-to-organic-mislabeling-claims/">here</a>).  The announcement came as a surprise since FDA had previously declined requests from consumers, the food industry, and federal judges to define the term.  In another surprise move, on April 12, 2016, FTC announced that four companies advertising their personal care products as “all natural” or “100% natural” agreed to settle FTC charges that their ads were false and misleading because the products contained synthetic ingredients.<a href="#_ftn1" name="_ftnref1">[1]</a>The products included:<ul><li>ShiKia’s “All Natural Hand and Body Lotion” and “All Natural Moisturizing Gel,” which allegedly contain dimethicone, dthyhexyl glycerin, and/or phenoxyethanol;</li><li>Rocky Mountain Sunscreen’s “Natural Face Stick,” advertised as “all natural,” which allegedly contains dimethicone, polyethylene, and other synthetic ingredients;</li><li>EDEN BodyWorks’ “Coconut Shea All Natural Styling Elixir” and “Jojoba Monoi All Natural Shampoo,” which allegedly contain polyquaternium-37, phenoxyethanol, caprylyl glycol, and polyquaternium-7;</li><li>Beyond Coastal’s “Natural Sunscreen SPF 30,” advertised as “100% natural,” which allegedly which allegedly contains dimethicone; and</li><li>California Naturel, Inc.’s “all natural sunscreen,” which allegedly contains dimethicone.</li></ul>Under the proposed settlements, the companies may not make “all natural” or “100% natural” claims unless they have proper substantiation, i.e., competent and reliable evidence to substantiate any ingredient-related, environmental, or health claims they make.  FTC made it clear that the terms “all natural” or “100% natural” may only be used if there is nothing artificial or synthetic in the product.The FTC’s action is unexpected not only because FDA is currently addressing the use of the term “natural” on food labels, but because FDA does not have an informal policy regarding the use of “natural” on personal care products (as it has for food).  Given the absence of applicable regulations or policies, companies should take note of FTC’s action and its strict interpretation of “all natural” and “100% natural.”<a href="#_ftnref1" name="_ftn1">[1]</a> The FTC also issued a complaint against a fifth company for making similar “natural” representations.

FTC Targets “All Natural” and “100% Natural” Claims on Personal Care Products

As we have previously reported, FDA is currently seeking public comments on the use of the term “natural” on food labeling. The announcement came as a surprise 

FTC Targets “All Natural” and “100% Natural” Claims on Personal Care Products

Food Misbranding

The FTC recently sent over 50 warning letters to contact lens prescribers and sellers warning them that they may be in violation of the Fairness to Contact Lens Consumer Act, 15 U.S.C. § 7601 et seq., and the Contact Lens Rule, 16 C.F.R. Part 315.  The Act and the Rule have two basic requirements.  First, contact lens prescribers must provide patients with a copy of their contact lens prescriptions at the end of a contact lens fitting, even if the patient does not request it.<a href="#_ftn1" name="_ftnref1">[1]</a>  Second, contact lens sellers cannot provide contact lenses to a customer unless they obtain a copy of the customer’s prescription or verify the prescription information through procedures set forth in the Rule.  The purpose of the laws is to allow consumers to comparison shop while encouraging competition among contact lens sellers.The letters warn that contact lens prescribers and sellers in violation of the Act and Rule may be subject to legal action, including civil penalties of up to $16,000 per violation.  For more information, see FTC’s guidance regarding prescribers’ and seller’s obligations in: <a href="https://www.ftc.gov/tips-advice/business-center/guidance/contact-lens-rule-guide-prescribers-sellers" target="_blank">The Contact Lens Rule: A Guide for Prescribers and Sellers</a> and Complying with the Contact Lens Rule.<a href="#_ftnref1" name="_ftn1">[1]</a> Prescribers also cannot require consumers to buy contact lenses, pay additional fees, or sign a waiver or release as a condition of releasing or verifying a contact lens prescription.

Seeing Double . . . or More: FTC Sends over 50 Warning Letters to Contact Lens Prescribers and Sellers

The FTC recently sent over 50 warning letters to contact lens prescribers and sellers warning them that they may be in violation of the Fairness to Contact Lens

Seeing Double . . . or More: FTC Sends over 50 Warning Letters to Contact Lens Prescribers and Sellers

On February 2, 2016, the FTC settled claims against Sale Slash LLC regarding the marketing of its weight loss pills, including Premium Green Coffee, Pure Garcinia Cambogia, Premium White Kidney Bean Extract, Pure Forskolin Extract, and Pure Caralluma Fimbriata Extract. FTC v. Sale Slash, Case No. CV15-03107 PA (AJWx). The FTC alleged that Sale Slash misrepresented the effectiveness of its “bogus” weight loss pills, improperly used spam emails, and used fake celebrity endorsements to market its products.As part of the stipulation for a permanent injunction and monetary penalties, Sale Slash agreed to pay $43 million in equitable monetary relief to settle the claims. In addition, the stipulation bars Sale Slash from (1) sending emails that fail to identify the sender, that include misleading subject headings, and/or that lack a proper opt-out option for recipients; (2) using fake celebrity endorsements; and (3) making weight loss or health-related claims unless Sale Slash can substantiate the claims with competent and reliable scientific evidence.

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Diet Pill Company Sale Slash to Pay $43 Million in Settlement with FTC Over Spam Email and Fake Celebrity Endorsements

Diet Pill Company Sale Slash to Pay $43 Million in Settlement with FTC Over Spam Email and Fake Celebrity Endorsements

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On February 2, 2016, the FTC settled claims against Sale Slash LLC regarding the marketing of its weight loss pills, including Premium Green Coffee, Pure Garcin