AD-ttorneys@law – August 14, 2019

Alerts / August 14, 2019

In This Issue

Oh, (No) Snap! CARU Praises Snapchat for Safeguarding the Underaged

Company’s response is more than just an age-gate and an indifferent shrug

Singing Praises

The Children’s Advertising Review Unit’s (CARU) paean to the virtues of Snap, owner of mobile app Snapchat, begins with a frank admission: “When it comes to technology, kids are often savvier than adults and it is almost impossible to prevent them from lying online about their age.”

Sobering stuff. The report goes on to state that “techniques that effectively restricted access and prevented children from breaching protections are quickly becoming obsolete.”

But Snapchat, unlike many companies, “goes beyond the minimum requirements and incorporates higher-level safety design features to ensure that underage children are not able to use Snapchat.”

So how does Snapchat score so high?

The Takeaway

Break out your notebooks, folks:

First, Snap is crystal clear about whom the app is for. “Snap’s Terms of Service clearly prohibit users under 13 years of age and makes no effort to market the app to children or provide them with an appealing user experience,” says CARU. Other services that surreptitiously cater or market to children while maintaining that their market is adult routinely earn negative results in investigations.

Next, Snap effectively age-gates children under 13. “The app employs an age-gate asking date of birth in a neutral manner,” reports CARU, “and does not display text that implies a user needs to be over 13 years of age to register.”

CARU has made it clear that age-gating is not enough of a barrier to underage use. So, in addition to age-gating, Snapchat has instituted “tight” systems including “an easy, in-app reporting tool permitting users to flag accounts that are believed to be underage as well as a robust trust and safety team that investigates all such reports.”

Finally, “all app features that touch personal data are vetted collaboratively through the legal team, product engineers, and trust and safety representatives,” states the report.

Words to the wise

Missguided Missed Deadline in Kardashian Suit

Kim receives $2.7 million default judgment from ‘Fast Fashion’ suit

Kim, Kim, Kim

We’re going to keep this short.

We talk about the Kardashians all the time. Of course, we do. The Kardashian clan and their various distant relations, suitors and hangers-on have turned life itself into a form of advertisement. They helped create our present culture, for better or for worse.

And since advertising is such a volatile mix of legal pitfalls, the Kardashians’ very existence seems to call lawsuits into being.

Did Kim try a lollipop? Lawsuit. Did Kendall make a single Instagram post about the Fyre Festival? Subpoena. Did Kourtney’s possible boy-toy wear a new set of specs? Lawsuit. Did Kim use her initials on a product? Lawsuit! Did Kanye West don an American flag jumpsuit inspired by Evel Knievel and ride a rocket over the Grand Canyon? (Lawsuit, sure, but maybe that last one is just exceptional.)

Fast Fashion

“Fast fashion” companies such as U.K.-based Missguided (get it?) make their bread on the same hyperspeed culture that created the Kardashian phenomenon. Fashion-brand rating site Good on You defines fast fashion as “cheap, trendy clothing, that samples ideas from the catwalk or celebrity culture and turns them into garments in high street stores at breakneck speed.” (Read the linked article – it’s an excellent overview).

This new force is eliding the old low-fashion/high-fashion categories that have dominated fashion in the modern era, much like the Kardashians blurred the boundaries between celebrity and real life. So it’s no surprise that such influencers as Kim and company feature heavily in fast fashion advertising and marketing.

The Takeaway

And sometimes they feature in it against their will, claimed Kim Kardashian in her February 2019 lawsuit against Missguided in the Central District of California.

“Missguided systematically uses the names and images of Kardashian and other celebrities to advertise and spark interest in its website and clothing. Missguided’s website and social media pages are riddled with images of and references to Kardashian….” Kardashian sought no less than $10 million in compensatory damages, disgorgement of profits and a permanent injunction against the use of her likeness.

And Missguided’s response? Nothing. The company simply failed to respond to the complaint at all, leading Kardashian to file for default judgment. The court awarded Kim $2.7 million of her original request, awarding judgment against Missguided’s U.S. company only for reasons related to arcane matters of proper process serving in foreign countries. The court also enjoined Missguided from the use of Kim’s trademarks, so if we hear more about her lawsuits, they won’t involve this defendant. If you’re into legal rabbit holes, here’s the order. Have fun.

Why didn’t Missguided reply? In her motion for default judgment, Kardashian argues that the company “strategically” and “tactically” failed to respond in an attempt to sidestep liability. But beyond that self-evident explanation, Kardashian fails to offer any further insight. But when your opponents fail to show up to the dispute, why would you care

NAD Puts Slumber and Anxiety Claims to Bed

Division pokes at the underlying studies

Quilt Noir

You can’t stop the hard-boiled gumshoes over at the National Advertising Division (NAD).

Sometimes, seemingly at their mere approach, advertisers surrender – consider the case of Weighting Comforts, which sells weighted blankets that are touted as addressing anxiety and sleeplessness in kids and adults.

When NAD came knocking with a review of Weighting’s advertising claims, the company promptly informed NAD that it was discontinuing several of the challenged claims, making further review moot, right?

Hold It Right There

Not so fast. We’re talking about NAD, my friends, and they don’t call it quits. Its review included the claims that were already discontinued.

The company’s claims included several boasts about the sleep-inducing, anxiety-proofing benefits of weighted blankets, such as “Our blankets are designed for you if you’re battling symptoms of Anxiety, Insomnia, PTSD, Restless Leg and Depression,” and “Weighted blankets have been proven to increase serotonin and melatonin in your body, which helps you relax, feel calmer, and fall asleep much easier.” These claims, in turn, rested on two studies that Weighted furnished to the NAD.

The Takeaway

One of the studies, which the sleep claims were based on, actually passed muster. NAD had some doubts about the methodology – the tests were limited to individuals with chronic insomnia – but in the end gave the study its blessing. The problem, however, was that the claims based on this study were quite general; NAD suggested that “our weighted blankets help you sleep better” should be cut back to state that “the weighted blankets may improve sleep quality.” The other study, which underlay the company’s anti-anxiety claims, didn’t fare so well. The study was carried out on subjects who had little or no anxiety and were tested only for five-minute intervals, among other flaws. NAD recommended that the claims be discontinued but concluded with this uncharacteristically cozy thought: “Nothing in the record prevents the advertiser from touting that its blankets provide users a sense of security.”

Which just proves that despite their gruff exterior, NAD investigators have a heart of gold.

Youfit Reaches $1.4M TCPA Settlement

Super-friendly gym accused of lack of textraint


For most of us, gyms can be somewhat … intimidating. We’re going there because we’re less than perfect, of course. But why are there so many perfect people already there, working out one machine over?

Youfit, sensing our unease, caters to the more casual gym attendee. Bright, friendly colors (green and purple, sure, but they sort of work); an emphasis on a warm, welcoming atmosphere; exuberant group classes; and, most attractive of all, an assortment of real-life bodies depicted in its advertising. “All are welcome” is the message. Check out this representative broadside against “Gymtimidation” for a taste of how Youfit rolls.

Sitting Out

Is it possible that Youfit tries too hard? That seems to be the emotional subtext behind Cydney Halperin’s July 2018 class action suit against the chain, filed in the Southern District of Florida. Halperin alleges that Youfit, with what may be trademark exuberance, texted her twice in May 2018. “Youfits [sic] amazing $0 DOWN is back, but only for a short time…” the first text read.

$0 down? Who’s complaining? Well, Halperin is: She claims she never consented to receiving texts and had in fact been on the National Do Not Call Registry for nearly a decade before Youfit contacted her. In response, she filed a class action under the Telephone Consumer Protection Act (TCPA) seeking actual and statutory damages and injunctive relief.

The Takeaway

The case moved swiftly toward mediation, which got underway in October 2018 and settled this May. The final agreement was approved just a year after the initial complaint was filed.

Class members who file will receive $7.50, for a total class payout of $1.4 million. If you weren’t a Youfit member and didn’t ask for texts from the gym but received one anyway between July 25, 2014, and May 15, 2018, you’re in the class.

Halperin and her class compatriots didn’t get everything they wanted. Youfit denied “each and every allegation of wrongdoing, liability, and damages that were or could have been asserted in the litigation,” which fell short of the complaint’s request that the TCPA violation be acknowledged.

But we’re sure they issued that vehement denial with an enthusiastic air and an ingratiating smile. See you in Bang Power Dance class!

FDA Warning Letter Ruins Curaleaf’s Mellow Buzz

Administration says cannabis product company is offering drugs – the medical kind

Cool-Hand Cream

If you’re of a certain age, the Curaleaf website is something to marvel at.

Go back a few decades – we won’t get specific for fear of dating ourselves – and it would have been difficult to imagine that the sale of marijuana-derived products would ever be so … corporate. But today we have Curaleaf and its competitors, companies with slick, vibrant web presences, corporatese marketing copy and staid packaging that would blend in on the shelves of any Whole Foods store.

Mainstream cannabis products have arrived – with all the countercultural disruption of a designer soap.

Curaleaf offers a wide assortment of CBD-oil-derived personal care products in a robust online store, including complexion creams, massage oils and lip balms. But the section of the company’s website dealing with its “premium mainstream cannabis brand” – vaporizer oils, lozenges and edibles – is just one quiet page sorely lacking in detail. Why so quiet?

Here Comes the Fuzz!

It’s a sign of the times that a cannabis product company’s main struggle with the Feds involves the Food and Drug Administration (FDA).

In late July, the FDA delivered a warning letter to Curaleaf calling it out for a number of branding and labeling issues.

First, it rounded up several Curaleaf products – oils, tinctures, vape pens and so on – as new, unapproved drugs because “they are intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease and/or intended to affect the structure or any function of the body.” According to the FDA, Curaleaf was claiming the products could address chronic pain, anxiety, ADHD and opiate withdrawal symptoms, as well as diseases such as Parkinson’s and Alzheimer’s … it’s a long list. (The FDA claimed that Curaleaf was similarly pushing new, unapproved drugs for animals as well.)

The FDA also alleged that the labeling on the products “failed to bear adequate directions for use,” since it was addressing “conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners.” Finally, it criticized Curaleaf for possibly marketing the products as dietary supplements. Because CBD is an active ingredient in an already approved drug product, it is not currently approved for any use in a dietary supplement or conventional food. So far, however, the FDA and Federal Trade Commission have limited their enforcement efforts to cases such as this one, in which the advertiser is representing that CBD can treat serious diseases such as Parkinson’s.

In response, Curaleaf released a statement that it’s cleaned up its act, removing all the claims identified by the FDA from its website and social media platforms.

The Takeaway

As we noted in an earlier blog post, the FDA is taking its time developing a full regulatory approach to CBD products. It held a public hearing on the matter in May, for which the public comment period recently closed. But it is moving forward; Curaleaf’s warning letter isn’t the first, and it’s not likely to be the last.

But until the FDA firms up its regulatory strategy, advertising will be fraught for any company that develops new CBD-related products – and that’s a lot of companies.

It’s not simply that the FDA hasn’t fully defined its own philosophy on the subject; in the absence of fully fleshed-out federal regulation, there’s a mix of enforcement at the state level as well. Consider New York City’s embargo of food or drink products containing CBD, which matches the FDA’s position on dietary supplements and foods, or California Assembly Bill 1417, which mandates disclosures in cannabis product advertising. If that weren’t enough, consumer actions against cannabis corporates are also on the rise – in a masterpiece of irony, a trucker is suing a cannabis company over CBD products that allegedly caused him to fail a drug test.

For the time being, marketing in the cannabis-product marketplace is going to be treacherous. Companies need to exercise caution when marketing new products, veering away from making drug claims. All these efforts need to be keyed to the jurisdictions where sales are taking place and the ongoing steps taken by the FDA as it moves forward to a final position.

If only we could think of a way to relax.

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