Hunton Retail Law Resource

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

Health App Makers Settle with NY Attorney General Over Heart Rate Claims and Murky Privacy Policies 

Three mobile health app developers have agreed to a settlement with the NY AG over allegations that they made false claims about their apps’ ability to measure vital statistics and failed to inform users what data the apps collected and stored. The app makers promised their products accurately measured heart rates and detected fetal heart beats, but the NY AG alleged the companies lacked sufficient information to back these claims. The companies’ privacy policies also neglected to inform consumers that the apps collected and stored sensitive information such as unique device identifiers and geolocation data. The app developers have agreed collectively to pay the AG $30,000 in penalties, revise their privacy policies to enhance disclosure and require users’ affirmative consent, and refrain from making misleading claims about their products.

NAD Scrutinizes Before-and-After Photos for Anti-Aging Claims

The NAD inspected before-and-after photos appearing in print ads for NeoStrata, Inc.’s anti-aging products, including the “Exuviance Retexturing Treatment” and “Exuviance Body Tone Firming Concentrate.” The NAD determined that NeoStrata sufficiently substantiated its claim relating to the makeup of the Exuviance Retexturing Treatment, but not its before-and-after shots. The NAD found that an in-house study offered in support of the photos failed to provide adequate information relating to the subjects’ ages or skin conditions and offered a very small sample size and recommended that NeoStrata pull the photos. However, the NAD found that the company offered sufficient evidence in support of claims about before-and-after photos relating to the Exuviance Body Tone Firming Concentrate. The NAD found the photo of a young model to be aspirational and rejected the notion that the depiction reasonably implied that Exuviance products gave users similar skin texture and tone. However, the NAD recommended that NeoStrata drop its claims that one of the products “helps erase the appearance of crepiness,” and contains “Pure Caffeine,” and that “The Antiaging Body Care Super Duo...restores youthful texture & firmness while reducing crepe-like appearance,” and makes users “Look Younger All Over.” NeoStrata has agreed to comply with these recommendations.