Hunton Retail Law Resource

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

FTC Swats Misleading Advertising Claims Just in Time for Mosquito Season

The FTC and makers of the “Aromaflage” line of products have agreed to settle charges that Mike & Momo, Inc., deceptively marketed its mosquito-repelling perfume sprays and scented candles. The company agreed to stop making unsubstantiated claims that its products repel disease-carrying mosquitos, work for 2.5 hours, and are as effective as 25 percent DEET. The FTC also alleged that Mike & Momo packed its Amazon storefront with five-star reviews written by the owners and close family members; under the proposed consent order Mike & Momo must disclose any “unexpected material connection” between the company and any endorsers.

FDA and FTC Say E-Cigarette Fluid Can’t Look Like Candy

The FTC and the U.S. Food and Drug Administration (“FDA”) jointly issued warning letters to 13 online companies marketing e-cigarette fluid with packaging made to look like iconic food products such as TreeTop apple juice, ReddiWhip whipped cream and WarHeads candy. The regulators say the companies have a responsibility to ensure they are not putting children in harm’s way or enticing youth use through the deceptively labeled products, citing an increase in the popularity of e-cigarettes that has coincided with an increase in poisoning incidents related to small children accidentally ingesting liquid nicotine. The FTC and FDA have requested responses from each of the companies within 15 days, including specific actions the company plans to take to address the outlined concerns.

FTC Warns Foreign Companies: Hands Off U.S Kids’ Geolocation Data

The FTC sent warning letters to two foreign companies that market wearable technology for children that collects geolocation data, warning them to review compliance with the Children’s Online Privacy Protection Act (“COPPA”). COPPA requires parental notice and consent before collecting, using or sharing personal information from a child under 13 years old. China-based Gator Group Co., Ltd., and Sweden-based Tinitell, Inc., both market watch-like devices specifically designed for children that are integrated with online services which collect real-time location data allowing parents to monitor and communicate with their children.

NAD Refers Unsubstantiated Flu Antidote Claims to FTC

The NAD failed to get a substantive response from The Silver Edge, a company marketing its “colloidal silver” as a natural remedy to the influenza virus, and has now referred the matter to the FTC. Colloidal silver is a liquid slurry of silver particles, sometimes promoted as a dietary supplement, with no studies showing positive health benefits but plenty of evidence of serious side effects. The Silver Edge did not respond with support for the challenged claims that its product is effective against the flu and that the Center for Disease Control’s recommendation of the pharmaceutical product Tamiflu can “safely be ignored.”

SharkNinja Vacuum May Suck Hardest, Doesn’t Mean It Cleans Better

SharkNinja LLC has agreed to modify advertising claims in response to the NAD’s recommendation that the company’s advertisement of best “overall” floor cleaning should be based on an industry standard measure, and not select criteria. The complaint was brought to the NAD by competitor Dyson, Inc., whose product was placed head-to-head with the SharkNinja in the ads. The NAD said SharkNinja passed over the industry standard protocol—ASTM 2607, designed to show how vacuum cleaners operate on a specific formula of dirt and debris—in favor of its own formula, which included Cheerios and selected testing surfaces, to arrive at an aggregated measurement of performance that may not accurately reflect its best “overall” claim. Despite SharkNinja’s claim that its product has more pure, raw suction power, the NAD said that does not necessarily translate into better “overall” floor cleaning.

Perdue Promotes the Happiness of Its Chickens Too Broadly

The NAD has recommended that Perdue Farms modify advertising featuring claims regarding the company’s Harvestland Organic sub-brand. The NAD said that advertising touting the happiness of its Harvestland chickens, who enjoy free range and an all-veggie diet, had the potential to mislead consumers into thinking that all Perdue chicken received similar treatment because of the way the brands were presented together in YouTube commercials. Perdue intends to appeal the recommendation to the NARB.