International Law

Remedies for Misleading Advertising

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Here are three different and interesting remedies for misleading advertising.

First, as reported by Steven Gardner, litigation director of Center for Science in the Public Interest:

"The FTC's crackdown on Airborne is welcome news and should serve as a template for similar actions against many other companies.

CSPI represents Airborne purchasers in the private class action in California that has settled and awaiting court approval.

If the court approves the settlement, victimized Airborne purchasers will get millions of dollars, perhaps as much as $20 million, in refunds."

Not only did the government regulator, the FTC, sue Airborne, as Steven states, so did CSPI is a class action lawsuit, the traditional remedy.

"After the class action suit had been pending for some time, CSPI learned last year that the FTC was also investigating Airborne.

We decided to defer to the FTC on seeking restrictions on Airborne's future practices to avoid conflicting results. We had faith that the FTC would impose at least as many restrictions, if not more, as we could achieve in the private litigation.

That faith was justified--the FTC consent order prohibits Airborne from claiming that it can prevent or cure the common cold.

The FTC expressly noted that there is "no credible evidence that Airborne products, taken as directed, will reduce the severity or duration of colds, or provide any tangible benefit for people who are exposed to germs in crowded places."

This is exactly what CSPI had determined in 2006 and was the basis for the private class action."

This an interesting combination of private and public lawsuits combining to aid the consumer.

Finally, there is a third method of dealing with misleading advertising, members of the National Advertising Division can bring suits against each other.

As reported by QSR, Wendy's advertising was recently challenged by Burger King.

"The National Advertising Division of the Council of Better Business Bureaus has determined that Wendy's International Inc., provided sufficient evidence to support express and product description claims made in the context of the company's "Always Fresh, Never Frozen" advertising campaign.

NAD, the advertising industry's self-regulatory forum, examined print, television, and Internet advertisements, following a challenge by Burger King Corporation, a manufacturer of competing products.

Claims at issue in broadcast advertising included:

?"If hamburgers were meant to be frozen, wouldn't cows come from Antarctica? Wendy's hamburgers are made with fresh never frozen beef. Who else can say that? It's better than fast food. It's Wendy's."

?"So, Dad, you know Wendy's is dedicated to using fresh beef that's never been frozen ... do you realize what kind of commitment that takes? I mean, to vow to something and then to continue to deliver on that promise ... a promise is only good if it is kept. Wendy's hot and juicy hamburgers are made with fresh, never frozen beef, that's a promise. It's way better than fast food, it's Wendy's."

Print and Internet advertising claims included:

?"Wendy's. Always fresh, never frozen!"

?"Wendy's. Always fresh, never frozen! That's right." (accompanied by a $1 off coupon and picture of burger, fries and beverage)

Following its review of the evidence in the record, including the affidavit, NAD found that the advertiser provided a reasonable basis to support the claim, "Wendy's, Always Fresh, Never Frozen," with respect to its hamburger patties.

In its advertiser's statement, Wendy's stated that it "appreciates the NAD's efforts in this matter and continues to be a firm supporter of the NAD self-regulatory process."

Now if we could only get real self regulation with respect to franchise disputes, we would all be better off.

Full post as published by Misleading Advertising Law on August 14, 2008 (boomark / email).