Hunton Retail Law Resource

This past week, several consumer protection actions made headlines:

FTC to Let the Sun Shine on Consumer Protection Issues in Rooftop Solar Panel Businesses

The FTC announced that it will be holding a workshop focused on competition and consumer protection in the growing industry of consumer-oriented rooftop solar panels. The workshop, which will take place in Washington D.C. on June 21, 2016, is meant to expand the FTC’s understanding and approach to the growing consumer solar panel industry. Planned topics of discussion include: (1) how consumers can get needed information when deciding whether to install rooftop solar panels; (2) how utility regulators currently approach compensating consumers for power generated on their solar panels; and (3) competition in the solar power generation industry.

Marketer of Indoor Tanning Beds Burnt by FTC Order

The FTC has reached a settlement with Dr. Joseph Mercola, Mercola.com, LLC and Mercola.com Health Resources, LLC, under which the Mercola entities will both refund customers and be permanently banned from marketing or selling indoor tanning beds.

The FTC’s complaint alleged that Mercola and his two companies ran deceptive advertisements claiming that indoor tanning beds are safe, do not increase cancer risk and “reverse the appearance of aging.” Mercola is alleged to also have paid the Vitamin D Council to recommend Mercola tanning beds without disclosing that it paid for the endorsements. The ads also claimed that the Food and Drug Administration had endorsed tanning beds as being safe, despite the fact that tanning actually increases the risk of developing melanoma skin cancer.

FTC and Roca Labs to Settle Suit Over Online Reviews

The FTC and Roca Labs have reached a tentative agreement in the FTC’s lawsuit regarding Roca Labs’ marketing of a dietary supplement claimed to be a safe and effective alternative to gastric bypass surgery. According to the FTC, Roca Labs unfairly sued and threatened to sue consumers who shared their negative product experiences online or complained to the BBB, claiming that the consumers violated the non-disparagement provisions of the Terms and Conditions document they “agreed to” when they bought the product. The FTC also alleged that the company’s weight-loss claims were false or unsubstantiated, that it failed to disclose that it compensated users who posted positive reviews, and that Roca Labs violated consumers’ privacy by disclosing their personal health information to payment processors, banks and in public court filings. The court has stayed legal proceedings until August 1, 2016, pending settlement between the parties.

NAD Rules on Bausch & Lomb Ultra Contact Lens Claims

The National Advertising Division (“NAD”) has recommended that Bausch & Lomb Inc. stop making certain representations about its line of Ultra contact lenses, but that other claims about certain chemical properties of Ultra lenses were supported by evidence. Johnson & Johnson Vision Care, Inc. (“JJVC”) challenged Bausch & Lomb’s advertising, arguing that Ultra lenses did not contain a moisture-promoting chemical called PVP. NAD found that the Ultra lenses do contain PVP, but not “4 times more PVP” than the competition, including JJVC’s Acuvue Oasys line of contact lenses. NAD also recommended that Bausch & Lomb discontinue claims that its Ultra lenses were “best-in-class,” and its claims regarding comparative fit and performance that were not supported by a credible study. NAD did note, however, that the factual data charts in Bausch & Lomb’s advertisements were acceptable as long as they did not convey the message of Ultra being a superior product to its competitors.

Chipotle’s GMO-Labeling Policy Subject to Class Action

A U.S. district judge has ruled that Chipotle cannot avoid a proposed class action regarding representations that its food does not use genetically modified organism ("GMO") ingredients. Plaintiffs in the case, Reilly v. Chipotle Mexican Grill, Inc., allege that Chipotle has deceived consumers by claiming that it only uses non-GMO ingredients, when in fact, many of its meat and dairy ingredients come from animals which eat GMO feed. A separate claim under the Florida Deceptive and Unfair Trade Practices Act was thrown out, with seven days to amend the claim.