AD-ttorneys@law – July 9, 2021

Alerts / July 9, 2021

In This Issue:

CARU Warns Kids Off of Consuming Sugary, Fruit-Scented Doll Tears

Sometimes you write a title so strange that a subtitle seems superfluous

Kids Today

The holy grail of toy manufacturing is the collectible—the marketing stratagems of “gotta get ’em all” toy lines litter the memory of every American under 50 years of age. Collectability—there is such a word—implied, at one time, a backward glance; people collected the toy lines of their remote childhood play. But eventually, after Star Wars action figures and Beanie Babies and Cabbage Patch Kids cut a swath through the culture, collecting a complete line of toys became part of the pitch.

Among the latest entries in the parade of collectibles are the Cry Babies, produced by IMC Toys. In their basic form, they are small plastic figurines of saccharine-cute children dressed in animal onesies. There are scores of individual figures, complete with personalities and quirks—Lemu likes classical music, Ella loves the forest and picking fruit, and so on. There are webisodes detailing their adventures, unboxing videos and so forth—the usual contemporary branding onslaught.

If you watch the unboxing video to its conclusion, you’ll get a demonstration of the Cry Babies’ main gimmick—they cry. Just fill the adorable figurine with water, press on its head, and tears begin to well in its eyes and roll down its cheeks.

Yes, folks—it’s a toy that lets your kids instill sadness and despair in an inanimate object.

How Can We Market Tears?

Once collectability takes off, toy makers need to create new iterations of their basic product that are collectible in their own right. And that’s where IMC Toys ran into trouble with the good folks at the Children’s Advertising Review Unit.

IMC Toys introduced a “Cry Babies Magic Tears Tutti Frutti” line. This new line performs the same trick as the basic version, except the tears are colored and smell like various fruit flavors. In TV commercials promoting the dolls, the colorful tears are referred to as “jelly.”

Don’t ask us to explain it.

The Takeaway

BBB National Programs groupies in the house know what happens next; the kids watchdog caught wind of the ads and started fretting over the use of the word “jelly.”

“In the commercial,” CARU explains, “a child sniffs the doll while small watermelons float around the doll. The tears are frequently referred to throughout the commercial as ‘jelly,’ a term commonly used to describe fruit preserves. The packaging also shows colorful tears falling from the doll’s eyes into the bowl accessory.”

Arguing that “the advertisement could reasonably convey to children that a fruit-themed doll that cried colorful jelly-like tears could be edible,” CARU recommended that the ad be modified to include a clear and conspicuous audio disclaimer explaining that the tears produced by the doll are not meant to be consumed by children—the existing written disclaimer in the ad, which read “fun to squeeze, not to eat,” was fleeting and too small compared to the rest of the ad. CARU further requested that the tears not be referred to as “jelly” going forward. It is not clear from the decision if making this change would eviscerate the need for a “do not eat” audio disclosure.

IMC Toys reported that the ads were no longer running, and any future efforts would conform with CARU’s recommendations.

Thank you for attending the 2021 Everywhere Commerce event!

Everywhere Commerce Event, June 15-16

Our Everywhere Commerce event was a huge success! Thank you to everyone who attended this two-day event in June, which included the latest developments, enforcement trends, and risk mitigation strategies from our advertising, digital risk advisory and cybersecurity, and class action defense teams. The event drew more than 150 attendees from a variety of industries, and our esteemed panels included speakers from the FTC, the BBB, the NAD, Oracle and FIS. If you are interested in reviewing the final presentation materials, please click here.

Digital Watchdog Recommends Congressional Action on Dark Patterns

IDAC wants to sweep away hundreds of nasty practices at once

Tired of Whacking Moles

Back in March, we opined that a “sea change in the way the public conceptualizes the dangers of the web” was occurring. A collection of familiar online chicaneries were being grouped together under the moniker “dark patterns”—a term embraced by both the Federal Trade Commission and nerdy experts.

Here’s the condensed version: Dark patterns are a set of manipulative user interface designs deployed by website engineers to fool users into doing things they otherwise wouldn’t do—like buying a product or supplying personal information. Dark patterns can range from straightforward design choices, like impossible-to-find, intentionally buried disclaimer notices to complex webs of sign-up pages that baffle the user into agreeing to unwanted subscriptions.

The attention given to the overall philosophy that unites these disparate practices demonstrates a new willingness in the marketplace to tackle the problem of web-based deception as a whole.

The Takeaway

For an easily digestible overview of the dark patterns universe (sounds like a new young adult novel series, doesn’t it?), you could dive into the International Digital Accountability Council’s recent comment letter.

Sent to the Federal Trade Commission (FTC) in response to the FTC’s request for comment on an earlier workshop, the letter presents a thorough introduction to dark patterns and their impact. The letter also contains what is essentially a single recommendation—that Congress create a “comprehensive privacy legislation that specifically prohibits dark patterns,” with enforcement powers given to the FTC, along with a full-court press of new guidelines and investigations.

What’s left is a waiting game to see if anti-dark pattern efforts, which have been simmering for some time, eventually boil over into government action.

Natural Foods Company Gets Punched in the Protein

Break out the calculators, folks—some protein ain’t real

Therefore, We Cannot Have Nice Things

Everybody loves protein. Amid the confusion engendered by decades of diet plans—fad or otherwise—the need for protein has been a near-universal constant, something that most experts could agree on. And while consumers of the latest fad diet might have struggled to figure out which carbs to count, or whether they were consuming the right type of fat, they could always rely on protein—the simple ingredient. The reliable ingredient.

And then a case like Meraz et al. v. Purely Elizabeth, LLC shows up and ruins things for everybody. This recent class action—filed by a couple of California consumers in late May in California’s Northern District (aka the “food court”)—alleges there is protein, and then there is protein.

Acid Trip

The heart of the case is a scrumptious-sounding list of products from Purely Elizabeth, including granolas and a variety of oatmeal, pancake and waffle mixes (we’re into the Banana Nut Butter Grain-Free Granola).

The consumers are targeting protein claims on the front of Purely Elizabeth’s packaging—specifically an “X protein” tag, where “X” stands for the grams of protein in the product. But the complaint alleges that all proteins are not created equal—and that explicit protein claims trigger specific protein ad rules that Purely Elizabeth is failing to live up to.

The allegations relate to the overall amount of protein in the product but also to the “biological value” of that protein. The plaintiffs claim that amino acid testing demonstrates there’s less protein in the product than the tag claims in an absolute sense—but also that “when the amino acid content is adjusted for protein digestibility … Defendant’s products will provide even less protein per serving than amino acid content testing alone suggests.”

The Takeaway

Here’s where the Food and Drug Administration (FDA) enters the picture. “According to [FDA] regulations, ‘[a] statement of the corrected amount of protein per serving … calculated as a percentage of the RDI or DRV for protein, as appropriate, and expressed as a Percent of Daily Value … shall be given if a protein claim is made for the product.”

Thus, the plaintiffs claim that Purely Elizabeth violated federal and state law by misbranding its wares. “Regulations require any product that makes a protein claim to include in the nutrition facts panel the percentage of the daily value of the protein in the product based on its amino acid content and [protein digestibility],” they maintain. “The Products prominently make protein content claims but fail to provide the required percent daily value of protein in the nutrition facts panel.”

There you have it folks—another nutrition component that you’ll have to think endlessly about. Blame us all you want, but we’ve got to share the truth. Or two sides of it, at least.

Truth in Advertising Forces Meatless Macher into FAQ Revision

Watch out what you call “synthetic”

How Real Do We Really Want It?

There’s something about plant-based meat that’s ... well, mystifying.

The product sector has come a long way, of course, led by two companies, Impossible Foods and Beyond Meat. The pair delivered their own versions of what was once inconceivable: fake-meat burger patties that taste reasonably like the real thing and can be grilled without crumbling into bits. The burgers even bleed in a convincing way.

And that’s where we get a little bit confused. Sure, it’s a wonderful thing to offer meatless meat products to the masses, if your aim is to reduce greenhouse gas emissions and deforestation. But how many meat eaters are willing to make this sacrifice? Does anyone abandon meat for purely rational reasons?

Many people love to eat a burger because they love to eat a burger and don’t think about the animal on the other end; many people who reject meat do so because they object to eating animals on moral grounds.

So can a simulacrum of beef, blood and all have any appeal to either group? We know why unrepentant carnivores enjoy “regular” burgers. No mystery there. But wouldn’t eating a facsimile of meat be somewhat creepy for people who reject eating animals? Do those consumers really want the patty to bleed properly when it’s cooked?

The Takeaway

Recently, one of the “big two” meatless burger companies, Beyond Meat, ran into trouble with the pit bulls over at Truth In Advertising Inc. (TINA) over the ingredients that make their fake meat so believable.

In a company website FAQ, Beyond had claimed that its ingredients were “simple and made from plants—without GMOs or synthetically produced ingredients.” Interviews given by the company’s CEO supported this assertion.

TINA identified two ingredients listed in Beyond’s burger packaging—methylcellulose and “natural flavors”—that they consider to be wholly or in part synthetic. According to the watchdog, Beyond failed to respond to its queries on the subject. Nonetheless, Beyond removed the “without … synthetically produced ingredients” claim from the FAQ page.

So, chomp on safely, people who are eating meatless meat, because it’s the smart thing to do!

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