Hunton Retail Law Resource

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

Nectar Brand to Put Its “Made in America” Claims to Bed

Nectar Brand LLC has agreed to stop making unqualified claims that its mattresses were made in the United States. According to the FTC’s complaint, Nectar Brand sells mattresses under several brand names, including Nectar Sleep, DreamCloud LLC and DreamCloud Brand LLC. Nectar Brand’s ads and product labeling included statements that the products were “Designed and Assembled in USA.” In fact, the FTC alleged that the mattresses all are imported from China and that Nectar Brand has no assembly operations in the U.S.

Under the settlement terms, Nectar Brand is prohibited from representing that its products are made in the United States unless it can substantiate its claims. Further, Nectar Brand’s officers are prohibited from misrepresenting the country of origin of its products.

FTC Proposal Would Put 1966 Television Screen Rule Down the Tubes

The FTC has voted to recommend the repeal of the Picture Tube Rule. The Rule was initially issued in 1966 to prevent deceptive claims about the size of the viewable area of television screens. After soliciting comments about the Rule in 2017, the FTC voted 2-0 to repeal it. A comment period about the decision to repeal the Rule will be open through May 14, 2018. Comments may be submitted here.

Wrinkle in Anti-Aging Claims Leads to FTC Referral

After failing to provide substantive responses to support the challenged advertising claims, the NAD is referring Perfect Prime to the FTC. The NAD had sought substantiation for claims Perfect Prime made about its Anti-Aging Serum, including “achieve younger looking skin” and “look decades younger without going through expensive or painful treatments.”

NAD Recommends Sprint Limit Its Claims About Verizon’s Unlimited Service

The NAD has recommended that Sprint Corp. discontinue certain claims comparing its “Sprint Unlimited” service against Verizon’s Unlimited service. Verizon challenged claims that Sprint had made in its advertising, including that Verizon’s network lacked reliability, Sprint’s service offered a better experience than Verizon’s, and that Verizon’s offerings are always twice the price of Sprint’s.

The NAD found that Sprint did not have adequate substantiation for its claims, and recommended that Sprint cease its claims. Sprint has agreed to comply with the NAD’s recommendations.

NAD Inquiry Stops FemaLife Nutrition Claims Regarding Probiotics

FemaLife Nutrition, LLC, has agreed to permanently discontinue advertising claims regarding its Super Flora Probiotic dietary supplement. This decision comes after a NAD investigation that was ultimately referred to the FTC for review.

In 2017, the NAD requested substantiation for a number of advertising claims regarding Super Flora Probiotic, a dietary supplement marked by FemaLife. Challenged claims included “clinically proven results,” “put an end to all your digestive discomforts in less than 30 seconds per day,” and quotes which appeared to be from Super Flora Probiotic users. During the NAD’s initial investigation, FemaLife neither filed a substantive response nor provided any evidence to substantiate the claims under investigation. Accordingly, the NAD referred the matter to the FTC for review.

FemaLife has since submitted a written statement to the NAD indicating that although it “stands behind its advertising claims,” it will discontinue the challenged claims.

NAD to Refer Insole Manufacturer to FTC and FDA Due to Lack of Support of Advertising Claims

The NAD will refer shoe insole maker Implus LLC to the FTC and FDA after Implus indicated it would not comply with the NAD’s recommendations regarding its advertising claims.

Bayer Healthcare, the maker of Dr. Scholl’s, brought the complaint against Implus. Implus’s marketing materials suggest that its insoles relieve pain, foot fatigue, discomfort and provide better support for feet. When the NAD challenged the claims, Implus relied on positive customer reviews to substantiate the claims. But according to the NAD, this anecdotal evidence is not enough to support blanket claims unless there is evidence that these positive reviews represent the experience of the typical user. Accordingly, the NAD recommended that Implus discontinue its unsubstantiated claims.

Implus stated that it would not comply with the NAD’s recommendations. As a result, the NAD has referred the matter to both the FTC and FDA for potential governmental enforcement action.