Hunton Retail Law Resource

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

FTC Seeks Public Comment on Sears’ Petition to Modify Prior Order

Sears Holding Management Corporation has requested that the FTC reopen and modify a 2009 Commission Order settling charges that Sears inadequately disclosed the scope of consumer data collected through the company’s software application. The initial FTC complaint alleged that Sears represented to consumers that its downloadable software application would track users’ “online browsing,” but in fact tracked nearly all of the users’ Internet behavior. Sears petitioned the FTC to modify the Order’s definition of “tracking system,” which the company contends is overbroad and impracticable. The FTC is seeking public comment on Sears’ petition, which it will receive until December 8, 2017.

NAD Recommends Schmidt’s Discontinue Antiperspirant Claims

The NAD has recommended that Schmidt’s Deodorant Company discontinue claims that its natural deodorant products “absorb” and “help absorb” wetness. The company’s deodorant contains plant-based powders, but is not an antiperspirant. The NAD found that the testing Schmidt’s provided for its absorption claims was not sufficiently reliable. The NAD did conclude that Schmidt’s had a “reasonable basis” for its separate claim that the product had received “10,000 5 Star Reviews.”

NAD Recommends That “Too Faced” Discontinue Mascara Claims

The NAD has recommended that Too Faced Cosmetics discontinue claims that its Better Than Sex mascara gives eyelashes “1,944% more volume.” While Too Faced agreed to permanently discontinue advertising references that this volume claim was based on a clinical study, it did not agree to cease using its volume claim altogether, or to discontinue “before” and “after” depictions. Too Faced has indicated its intent to appeal the decision to the NARB.

NARB Recommends That Unilever Discontinue Certain Claims about Suave Body Wash

A panel of the National Advertising Review Board (“NARB”) has recommended that Unilever United States, Inc., discontinue certain claims comparing its Suave body wash to Bath & Body Works products in an online video and on Suave packaging. The NARB concluded that Unilever’s video communicated a message that consumers preferred Unilever’s overall line of body wash products to Bath & Body Works’, when that preference claim only applied to three body wash variants. The NARB also concluded that the claim “Fragrance As Appealing As Bath & Body Works,” which appeared on Suave body wash bottles, was not properly substantiated. Unilever indicated that it would comply with the NARB’s holding.

CARU Refers Advertising Claims Made by Dave & Buster’s to FTC

The Children’s Advertising Review Unit (“CARU”) has referred a commercial promoting Dave & Buster’s Entertainment, Inc.’s “free video game play” to the FTC. The commercial began with large bold letters announcing “Free Video Game Play” during “Weekdays this summer.” The voiceover stated, however, that participants were required to purchase a $50 power card, and printed superscript further indicated that certain games were excluded from the offer. CARU was concerned that these terms were not adequately disclosed to the child audience. Dave & Buster’s did not respond to CARU’s written inquiries.