Hunton Retail Law Resource

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

Federal Court OKs Large Warning Requirement for Cigar Products

A federal court has upheld forthcoming health warning requirements that will take up 30 percent of the principal panels of cigar product packages and 20 percent of cigar product advertisements. The court found that the textual warnings were “unambiguous and unlikely to be misinterpreted by consumers,” and that the cigar sellers retained sufficient space on their packaging and advertisements “in which to effectively communicate their desired message.” It also concluded that, under the Zauderer standard for commercial speech, the size, format and other design features of the warning statements were reasonably related to the government’s substantial interest in “providing accurate information about, and curing misperceptions regarding, the health consequences of cigar use.” The case is captioned Cigar Assoc. of Am. et al. v. FDA et al. No. 1:16-cv-1460 (D.D.C.).

Flushable Baby Wipes Plaintiff Can Sue

In a much-awaited amended decision involving “flushable” baby wipes, the Ninth Circuit has reaffirmed that previously deceived consumers “may properly allege a threat of imminent or actual harm sufficient to confer standing to seek injunctive relief” against false advertising or labeling. The claims at issue in the case arise from Kimberly-Clark’s allegedly false representation that its baby wipes are “flushable,” which the plaintiff says requires that the item be capable of disintegrating within a short period of time. The court held that, despite the plaintiff’s failure to allege damages to her plumbing, pipes or septic system, “the economic injury of paying a premium for a falsely advertised product is sufficient harm to maintain a cause of action.” Moreover, the court found that the plaintiff properly alleged that she faces a threat of imminent or actual harm by not being able to rely on Kimberly-Clark’s advertising when deciding whether to purchase its wipes in the future. In so holding, the Ninth Circuit resolved a clear split on the standing issue among California federal district courts. The case is captioned Davidson v. Kimberly-Clark Corp., No. 15-16173 (9th Cir.).

NARB Recommends Schmidt’s Cease Certain Deodorant Effectiveness Claims

Schmidt’s Deodorant Company has agreed to comply with the National Advertising Review Board’s recommendation that Schmidt’s discontinue claims that its deodorants (1) provide protection against wetness, (2) absorb moisture and/or wetness, (3) “work better than any store bought traditional deodorant” and/or (4) are “the only natural deodorant that really works.” The claims were initially challenged in 2017 by Tom’s of Maine, Inc., a competitor in the “natural” personal care products market. The NARB found that the challenged claims improperly implied that Schmidt’s products provide the same or similar benefits as antiperspirants, and that Schmidt’s testing in support of its wetness and absorption claims was not sufficiently reliable.

NAD Disapproves of DKB Household’s “Spin” on Salad Spinners

The National Advertising Division has recommended that DKB Household USA, Corp. discontinue certain claims regarding the effectiveness of its Zyliss SwiftDry Salad Spinner. The NAD expressed concern with three aspects of the third-party testing that DKB Household submitted in support of its advertising claims: (1) the testing was conducted on simulated rather than actual salad leaves, (2) the testing used a small sample size and resulted in a wide variation of results and (3) the testing only compared the product with those of two other competitors. On the third point, the NAD requires companies espousing “broad superiority claim[s]” to test their products against “all or a substantial portion of competitive products” to support such claims.