February 02, 2012

Advertising News & Analysis - February 2, 2012

5 min


Brazilian Blowout Marketer Settles Advertising case with California AG

Case has interesting Proposition 65, advertising implications

On Monday, the California Attorney General announced a settlement with GIB, LLC, marketer of the popular Brazilian Blowout hair treatment. The AG had alleged that the company falsely labeled two of its most popular products as “formaldehyde-free,” and failed to warn consumers and stylists that those products emitted formaldehyde gas (which is a carcinogen).

The settlement requires that the marketer stop advertising the products as “formaldehyde-free” and “safe,” engage in substantial corrective advertising, make significant changes to the company website, and pay $300,000 in Proposition 65 penalties and $300,000 to reimburse the Attorney General's office fees and costs.

Under the settlement, the company must also produce a complete and accurate safety information sheet, or “MSDS sheet,” on the two products, include a Proposition 65 cancer warning, distribute that information to recent and future purchasers of the products, and post the revised MSDS sheet on the company’s web site. 

Among other requirements in the settlement, the company must also:

  • notify salon professionals of the presence of a Proposition 65 chemical;
  • affix warning stickers to the products;
  • certify that the products comply with state air quality regulations; and
  • report the formaldehyde in its products to the Safe Cosmetics Program at the California Department of Public Health.

Two interesting stipulations of the settlement are conditions that the marketer disclose refund policies to consumers before the purchase is completed and that the company require proof of professional licensing before selling "salon use only" products to stylists.

According to the AG’s office, the settlement is the first law enforcement action under California's Safe Cosmetics Act, a right-to-know law enacted in 2005.

Go here to read the settlement document.

Facebook, Washington AG Allege Affiliate Marketer Violated Federal, State Spam Laws

Facebook and the Washington Attorney General recently filed separate lawsuits against an advertising network that allegedly used deceptive practices to lure Facebook users into providing their personal information and spread spam to other Facebook users in the process. The complaints allege that Adscend Media LLC overlaid the Facebook “Like” button with a message or other material promising to display enticing content to bait users into clicking on the hidden “Like” button, which would trigger the dissemination of alerts to the user’s friends notifying them that the user “Liked” the Facebook page. According to Facebook and the Washington AG, in some cases the messages would be spread to a user’s friends without the user clicking a hidden “Like” button. The complaints allege that Adscend employed a practice known as “clickjacking,” whereby a hidden code in enticing, hyperlinked content activated Facebook’s “Like” function to send notices to the user’s friends.

According to the complaints, when a Facebook user was lured into clicking on a link to view alluring content, the users was informed that he must proceed through a series of steps in order to view the material, steps that included providing personal information.

Facebook’s lawsuit alleges that Adscend violated the federal CAN-SPAM Act, Facebook’s trademark rights, and its terms of service. The Washington Attorney General’s complaint alleges that the ad network violated CAN-SPAM, Washington’s anti-spam law, and the state’s consumer protection statute.

Go here to read the Washington Attorney General’s press release. The page also contains a link to the Attorney General’s complaint.


Pre-purchase Exposure: Defeating Class Certification in False Advertising Cases

How can defendants in California defeat class certification in class actions that allege false advertising under either the "fraudulent" prong of the unfair-competition law or the Consumer Legal Remedies Act? Venable’s Gregory J. Sater writes in a recent Los Angeles Daily Journal column that there is at least one good way to do so, and that is by demonstrating variability of consumer exposure to the challenged advertising claim.

Go here to read Gregory Sater's column.

Upcoming Events

Understanding the Legal Issues in Social Networking, LIVE Webcast for The Knowledge Congress
February 8, 2012
Venable is a proud sponsor of this event. Join us for a presentation by Melissa Landau Steinman on the legal issues companies face related to social networking, and learn strategies to address the legal implications, mitigate risks and make the most of social networking efforts.

ERA Great Ideas Summit – Miami
February 27-29, 2012
Venable is a proud sponsor of this year’s ERA Great Ideas Summit in Miami. Please visit us at our booth, or if you would like to meet with one of our attorneys while you’re at the show please send an email to Charles Wilkins at cfwilkins@Venable.com.

Natural Products Expo West / Engredea 2012
March 9-11, 2012
Visit with Venable’s Dietary Supplements, Food & Cosmetics attorneys during this co-located exposition, stop by our booth (No. 246 in Hall A). Michelle Jackson and Todd A. Harrison will host a special one hour presentation on Friday, March 9 at 1:30 p.m. (PST) in Hall A.

International Home and Housewares Show 2012- Chicago
March 10-13, 2012
Join Jeffrey D. Knowles and Roger A. Colaizzi for a presentation that will answer the question “Can You Substantiate That? Alerting Marketers to Increasing FTC Scrutiny” on March 11 at 11:30 a.m. (CST) in Lakeside Innovation Theater, E350.

American Conference Institute's Food & Beverage Marketing & Advertising Law Conference
March 19-20, 2012
Venable is a proud sponsor of ACI’s Food & Beverage Marketing & Advertising Law Conference. Join Todd A. Harrison for a presentation on “Pom and Its Progeny – Examining Development Caselaw Addressing Evolving FTC Requirements for Health-Related Claims” and Claudia Lewis for a “Deep Dive into Food and Beverage Claim Substantiation.”

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