Alerts

AD-ttorneys@law – February 21, 2019

Alerts / February 21, 2019

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CARU Pelts ZURU Toys With Water Balloon Bullying Broadside

Company needs to make water bombing a little more lighthearted

Summer Splash

One of the longstanding rituals of summer – a surprise water balloon attack on an unsuspecting adult – is now suspect, at least as far as the Children’s Advertising Review Unit (CARU) is concerned. CARU has found that such action in television advertising violates Core Principle 7 of its Self-Regulatory Program for Children’s Advertising, which states, “Advertisers are encouraged to capitalize on the potential of advertising to serve an educational role and influence positive personal qualities and behaviors in children, e.g., being honest and respectful of others, taking safety precautions, engaging in physical activity.”

Da Bomb

Let’s back up a moment and consider the product that’s being advertised. ZURU Toys Bunch-O-Balloons brings mass production to the water balloon market.

The user attaches a water hose to a single connector, which funnels water through a bunch of tubes with individual balloons fastened to their ends. Dozens of water balloons can be filled in moments, making a massive water balloon arms race possible. CARU’s main concern with the commercial advertising ZURU’s water balloons is that the children’s behavior depicted in the advertisement appears to be disrespectful, based on the reaction of the adults in the ad. When hit with the water balloons, the adults appear shocked, annoyed and surprised rather than amused. “Not one of the adults smiled, laughed, or in any way had a positive response,” CARU’s report reads. “The adults were clearly not part of a party or an organized balloon fight. In fact, the commercial showed the group of children laughing at the adult’s discomfort.”

The Takeaway

CARU came across ZURU’s commercial through its routine monitoring program and found that ZURU’s commercial is not in line with its foundational principles, which provide that companies should market advertisements that influence positive behaviors and qualities in children and that have an educational role.

The ZURU commercial allegedly shows adults being pelted with water balloons by “a group of children.” However, it’s not the water balloon fight itself that CARU takes issue with, but rather the attitude of the splash victims that makes all the difference.

In advertising their products, companies should be mindful to create a more “inclusive tone,” for example by “providing balloons to everyone, showing light interactions between players, and avoiding an us/them feel.”

ZURU, for its part, informed CARU that the advertisement had already been taken off the air and was not scheduled to be re-aired.

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Ad Industry Groups Tackle CCPA Provisions in Open Letter

California Attorney General urged to make CCPA regulations more flexible

Nouveau Regime

Last June, the California legislature passed Assembly Bill 375 – the California Consumer Privacy Act (CCPA) of 2018 – which was swiftly signed into law by then-governor Jerry Brown. Panic ensued over the implications of this new privacy law, which provides greater transparency and choice for California consumers with respect to their personal information. (For a comprehensive review of the CCPA, see our article here.)

Back in September 2018, Governor Brown signed into law amendments to the CCPA that extend the time for the California attorney general (CaAG) to promulgate regulations to July 1, 2020, which could delay enforcement of the CCPA for up to six months. The delay has left open the door for additional criticism and proposals for alternative federal legislation that would pre-empt the CCPA altogether – see here for an example of one such framework.

The leading advertising and marketing associations in the U.S., including the Interactive Advertising Bureau, the Network Advertising Initiative, the Association of National Advertisers and the American Association of Advertising Agencies, have submitted a joint letter to the CaAG outlining their “notable concerns around the likely negative impact on California consumers and businesses from some of the specific language” in the CCPA and highlighting areas of the law they believe could be clarified.

Among their comments in the letter, the associations are utilizing their platform to “urge the AG to recognize that a written assurance of CCPA compliance is sufficient and reasonable” with regard to the obligations set forth in Section 1798.115(d) of the CCPA, which prohibits a company from selling consumer personal information that it did not receive directly from the consumer, unless the consumer has received “explicit notice” and is provided an opportunity to exercise the right to opt out of the sale. The letter also requests “that the AG clarify that businesses may offer reasonable options to consumers to choose the types of ‘sales’ they want to opt out of, the types of data they want deleted, or to completely opt out,” rather than the current approach set forth in the CCPA, which requires businesses to allow consumers to entirely opt out of the sale of their data or delete their data, which is an all or nothing approach.

Finally, the letter calls on the AG to clarify that a business does not need to create individualized privacy policies for each consumer to comply with the CCPA’s requirement that a business’ privacy policy disclose to a consumer the specific pieces of personal information the business has collected about that consumer.

The Takeaway

As is evident from the letter submitted to the CaAG by the associations, there is room for clarification as to the requirements set forth by the CCPA.

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Fiji Water Girl and Fiji Water Company Cross Streams

Photobombing model sues Fiji for publicity rights; Fiji fights back with counter suit

Cannonball!

Kelly Steinbach, a Fiji Water ambassador professionally known as Kelleth Cuthbert, denies any “conscious decision” to photobomb celebrities on the red carpet of this year’s Golden Globes Award ceremony.

If that’s true, she owes her subconscious a big fat paycheck.

If you don’t know who Steinbach is, here’s a primer: She’s the model decked out in a blue dress holding a tray of Fiji Water bottles who wound up in seemingly every red-carpet picture taken during the Golden Globes. By some trick of fate or camera angle (is there any difference between them, really?), she wound up posing behind a plethora of Hollywood elites. From Idris Elba to Nicole Kidman, the “Fiji Water Girl,” as she was dubbed by viewers, kept it rock steady in photo after photo.

The internet lit up as a wave of memes featuring Steinbach made their way across the web. Our favorite is Fiji Water Girl sitting with her unshakable Fiji Water tray and her enigmatic smile behind Thelma and Louise in the getaway car. There are multitudes more.

Swimmingly

At first, everyone except Jamie Lee Curtis seemed happy with Steinbach’s newfound celebrity. “Not the worst way to spend a Sunday,” Steinbach posted to her Instagram account. She was rocketing to fame, and she knew it. She even nabbed a spot on a soap opera.

Fiji’s marketing tweets make the company seem absolutely thrilled: “We’re so glad everyone is talking about our water! *senses ominous presence* She’s right behind us, isn’t she? #FIJIwatergirl.”

In the wake of the Golden Globes, Steinbach claims that Fiji Water tried to capitalize on her newfound fame, kicking off a marketing campaign that included cardboard cutouts of her likeness. She maintained that her agreement with Fiji included no such use of her image, and sued, alleging misappropriation of likeness and violations of her right of publicity under California law and common law and seeking compensatory and punitive damages.

The Takeaway

Fiji’s cross-complaint followed, written in a surprisingly harsh tone, with phrases like “attempted to extort,” “steep ransom” and “the irony is not lost on FIJI that Ms. Steinbach has now bitten the hand that feeds her by suing the very company that is entirely responsible for providing her the opportunity and the means to capitalize on her fleeting 15 minutes of internet fame.”

Fiji is maintaining that Steinbach explicitly agreed that her likeness was fair game in an agreement signed after the Golden Globes, when her agent and Fiji’s lawyers tried to hammer out a deal to keep the relationship going. This consulting agreement is at the center of this case and lends it a bizarre texture: Steinbach claims that the agreement was simply a prop used in photos of her supposed signing but was not a binding agreement.

Moreover, Fiji claims that Steinbach left the meeting with the only copy of the agreement and then destroyed it when she returned home after the meeting. Fiji has brought suit for breach of written and oral express contract as well as false promise.

When was the last time a right-to-publicity case centered on such an odd he said/she said situation? Grab the popcorn; hopefully the photobombed celebs will be called as witnesses.

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Eco Group, Poultry Company Play Chicken Over 100 Percent Natural Claims

Claims at issue must be supported by local context, not user search habits

Cockfight

In June 2017, Friends of the Earth (FOE), a sprawling collective of global eco-crusaders, sued Sanderson Farms, a venerable Mississippi-based poultry processing company, in California’s Northern District. The complaint included allegations of violation of California’s unfair competition and false advertising laws. A year and a half of intense litigation followed, including a bitter Rule 11 sanctions battle and two motions to dismiss, before FOE’s third amended complaint was lodged and the latest round of motions began.

FOE’s amended complaint alleges that Sanderson’s advertising, which markets its chicken products as “100% Natural,” is false.

FOE asserts that Sanderson’s “100% Natural” advertisements falsely and misleadingly suggest that its process and resulting product meet reasonable consumer expectations for “natural” poultry, including that no pharmaceutical residues remain in the chicken, that pharmaceuticals are not regularly administered to the chickens during their lives, that Sanderson is not helping spread antibiotic-resistant bacteria and that the chickens are raised naturally, when in reality Sanderson’s industrial production practices routinely use pharmaceuticals, including antibiotics.

Sanderson brought a motion to dismiss, arguing that the full context of its advertisements dispelled any confusion. On the company’s “100% Natural” webpage, for instance, the company claimed that because its assertions about the products – that they were free of hormones, steroids, etc. – are true, FOE could not state a claim that the advertisement is misleading. The court disagreed, denying Sanderson’s motion to dismiss, and stating, “Defendant appears to make an expressio unius argument: that because antibiotics are not included in the list of excluded artificial ingredients, a reasonable consumer could not conclude that antibiotics are also excluded” and that true statements regarding the nonuse of hormones and steroids did not “provide sufficient context for a reasonable consumer to conclude that this chicken product, which is advertised as ‘100% Natural,’ has not been treated with antibiotics ….” The court also found that Sanderson’s “silence on antibiotic use” on the page “undercuts the veracity” of the “100% Natural” claim.

Sanderson didn’t catch a break on its further argument that a link to a FAQ page that disclosed how the company uses antibiotics isolated the company from the charges. “No authority suggests a reasonable consumer is expected to search a company’s entire website (or certainly all of a company’s statements across all forms of advertisements) to find all possible disclaimers,” the court wrote.

The Takeaway

Companies should ensure that their advertising claims are not misleading and are not likely to deceive or confuse the public. While statements can be true standing alone, there is the potential that they mislead the public when combined with other messages. For an in-depth treatment of how Sanderson’s other ads were treated in this case, see Rebecca Tushnet’s excellent blog post here.

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