AD-ttorneys@law – August 5, 2020

Alerts / August 5, 2020

In This Issue:

Introducing BakerHosts – BakerHostetler’s New Podcast Series

Listen up! Our new podcast series, BakerHosts, features attorneys from across the firm’s practice groups discussing timely legal topics and sharing their unique insights. Our current lineup of programs includes:

  • Changes to Business Immigration during COVID-19: What Employers Need to Know
  • Blurred Lines: Focusing on Antitrust and Privacy
  • Patent Strategies for Clinical Stage Small Molecules Pharmaceuticals
  • Social Justice Movements & Employee Dress Codes
  • Life Sciences: Connected Medical Devices in the Cloud During COVID-19

BakerHosts is available on all major podcast players. Add it to your podcast subscriptions or listen here.

Alleged COVID-19 Treatment Claims Land Doc in Hot Water

CSPI and friends send letters to FTC, FDA about dangerous ‘coronadvice’


You have to hand it to Joseph Mercola. He went all in.

If the folks at the Center for Science in the Public Interest (CSPI) are right, Dr. Mercola went hog-wild, recommending a smorgasbord of products and therapies claiming to help treat COVID-19 through his website. Check out his news archive, where you can get a sense of the range of therapies he was pushing, from beets to sweet wormwood to antacids and vitamin C.

According to the CSPI, he even advised consumers in a podcast episode and an online article “that intentionally contracting the virus after consuming purportedly immunity-boosting supplements would confer greater protection against COVID-19 than a vaccine would.”

Off the Leash

Before we continue, let us just repeat what shouldn’t need repeating: There are currently no vaccines or drugs approved by the Food and Drug Administration (FDA) to treat or prevent COVID-19, and anyone who is claiming otherwise is asking for trouble from the powers that be.

Mercola’s array of dubious recommendations caught the attention of three watchdog groups – the CSPI, the People’s Parity Project and Justice Catalyst Law – that took the time to catalog Mercola’s alleged abuses.

The groups identify more than 20 “vitamins, supplements and other products” that he pushed as COVID-19 therapies, and took the time to assemble this handy chart.

You don’t want to be the subject of a chart drawn up by the CSPI.

The Takeaway

The watchdog groups penned letters to the FDA and the Federal Trade Commission (FTC) calling out the doctor. The CSPI’s policy director, Laura MacCleery, even appeared before the Senate Committee on Commerce, Science and Transportation to address false claims, using the doctor’s marketing efforts as an example.

Is there a takeaway here? Would anyone who is still offering COVID-19 therapies or cures without FDA approval even understand our advice at this point? Because our advice is simple: Stop offering COVID-19 treatment claims of any sort. Now.

On second thought, let us add this slightly less obvious addendum: If you are recommending products that are even glancingly related to COVID-19 symptoms, please carefully review your marketing and make it crystal clear that you’re not advancing a cure or a treatment that does not yet exist. If you run a platform that sells products and offers advice on their use, start double- and triple-reviewing. Don’t fall afoul of the authorities by seeming to push a product under the guise of medical advice.

NAD Nixes Slippery Quality Tag

Essential oil company brags about product’s ‘grade,’ but doesn’t have the backup

Fly in the Ointment

Chock-full of practical advice and knowing tutorials, the Young Living Essential Oils website is as much a lifestyle resource as it is a product platform. The products are – you guessed it – essential oils: everything from bergamot to thyme, arranged in a variety of single-serve and blended combinations. The lifestyle is promoted through a series of articles and a blog – information on essential oil safety, getting started guides, toxin-free cleaning and so on.

But buried in all this is one small phrase tucked into the meta tag of the site’s homepage: “Therapeutic Grade.” These two words got the company pulled into a National Advertising Division (NAD) investigation launched by its rival S.C. Johnson & Son. The question it posed: Does the phrase “therapeutic grade” make consumers think that Young Living oils confer “a beneficial healing physical or mental health effect on the body or mind”?

Yes, it turns out.

Although Young Living put forward a customer survey to support its argument that the phrase didn’t convey that the oils supported mental or physical health, NAD’s review of the evidence found the “survey methodology and results” were “fundamentally flawed.” On the other hand, S.C. Johnson’s opposing survey was deemed credible.

The Takeaway

What does “therapeutic grade” mean, anyway? Does it mean the materials used in the product are of superior quality? Or that the product itself is manufactured in such a way that it provides a superior benefit to lower-grade products? If the benefit is not health-related, what is it? And what authority confers the grade in the first place?

If you can’t answer these questions specifically and with ironclad back up, don’t make a claim such as “therapeutic grade.” You may just be asking for trouble.

Young Living is challenging the decision before the National Advertising Review Board. We will be sure to report back on the board’s interpretation of what “therapeutic grade” means and how it could potentially implicate other companies in the wellness industry.

Burger King’s Impossible Whopper Delivers, Says Court-Turned-Copywriter

‘Impossible’ patties are meatless, even if they’re cooked on the same impure grill

Sweet Freedom

For vegetarians who have a hard time living up to their professed lifestyle, synthetic meat must seem a godsend. Vegetarian consumers who have an irrepressible yen for beef now have an unprecedented range of alternatives that can keep them on the straight and narrow.

We can’t tell from Phillip Williams’ class action complaint, filed in November 2019 in Florida’s Southern District Court, whether he was just such a vegetarian. Perhaps he was a Burger King Whopper fan from way back and never shook the memory of the fast-food mainstay. Perhaps he was filled with joy when he learned that a delicious memory from his meat-eating past was available in guilt-free form. Who knows?

But no matter what you think about his suit, which was dismissed last month, you can imagine his horror when he came to believe that his Impossible Whopper, made with impossible, meat-free patties, was cooked on the same grill as standard beef patties.

Stealth Meat

Williams contended that the preparation of his impossible patties gave the lie to Burger King’s advertising. The company “has marketed and sold burgers using ‘Impossible’ synthetic meat patties under the descriptive product name ‘Impossible Whopper,’” the complaint claimed; its advertising maintained that the product “is ‘0% beef’ and ‘100% Whopper.’”

The complaint doesn’t say how Williams came to understand that his veggie Whopper was prepared on the same grill as the carnivore’s version of the same product; it spells out only his conclusion: “[T]he Impossible patties used to make the Impossible Whopper are in fact prepared and cooked on the same grills as Burger King’s traditional meat products and covered in meat byproduct and are thus not meat-free.”

The Takeaway

Williams pursued breach of contract and unjust enrichment charges, as well as violations of Florida’s Deceptive and Unfair Trade Practices Act. The case later expanded to include similar charges from a number of other jurisdictions.

The court did away with the suit last month, agreeing with Burger King’s argument that it had never promised customers anything other than a meat-free patty – it had made no representations at all as to the mode of the impossible meat’s grilling, so it wasn’t reasonable for the plaintiffs to make any assumptions about it. In addition, the company noted that non-broiler preparation was available to consumers who requested it.

The court concluded with a line that might as well have been a commercial tag: “Burger King promised a non-meat patty and delivered with the ‘Impossible Burger.’” As more vegetarian-friendly options are added to restaurants’ menus and consumers continue to gravitate toward this environmentally friendly trend, claims against companies regarding their vegetarian or vegan products may also increase in the coming years.

Check Out Our Latest Blog Posts

Big Day for Big Tech: CEOs Testify in House Antitrust Hearing

On Wednesday, July 29, 2020, the House Judiciary Committee’s Subcommittee on Antitrust conducted its sixth hearing into online platforms and market power, welcoming as witnesses the chief executive officers of Amazon, Apple, Google, and Facebook. The Subcommittee’s hearing culminated its year-long investigation into Big Tech, and the questioning was informed by requests for information posed to each tech company last September, which generated millions of pages of documents and hundreds of hours of interviews. Read more here.

New York Brings Long-Awaited Cybersecurity Message Case

Ever since the New York State Department of Financial Services (DFS) instituted its first-in-the-nation Cybersecurity Regulation in 2017 (covered in our post here), banks, insurance companies, and others in the financial services industry wondered what would trigger an enforcement action under its broad purview. At long last, the industry now knows. Learn more here.

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