Alerts

AD-ttorneys@law – June 6, 2018

Alerts / June 6, 2018

In This Issue:

“Trusted” Cuisinart Claims Kicked Up to Commish

Conair refuses to participate in review of an oft-used tagline

Everybody’s All-American

When Lee Rizzuto passed on in 2017, he was the kind of success story that’s overlooked in the age of Facebook, Google and Amazon.

Rizzuto was the founder of Conair, which he started with his parents in their Queens garage in 1959. The company is now ubiquitous, with a presence in 125 countries and product lines including Cuisinart and Waring. Rizzuto never gave up control of his company, remaining the chair of Conair’s board until he passed. He was worth $3.5 billion.

Titans

With a well-recognized brand name in use for almost 50 years, brand Cuisinart is a household name, a fact that Conair is not ashamed of exploiting. A recent marketing campaign by the parent company declared Cuisinart “The Most Trusted Name in the Kitchen.” According to the National Advertising Division, Conair was splashing that tag all over the Cuisinart line − food processors, blenders, coffee makers, toasters, electric kettles, black stainless cookware, the works.

Whirlpool, another iconic company and holder of the KitchenAid product line, bridled at the tag and contacted Conair to get substantiation. According to NAD, Conair responded by claiming that the tag line was puffery, and that, moreover, the line had been trademarked and therefore would not be subject to reproof.

The Takeaway

Whirlpool took the claim to NAD, noting that trademarks do not protect substantive claims, and that Conair could not furnish support for its claim.

Conair’s response? The company refused to cooperate with the NAD review process. It claimed that it had been using the tag for three years and that since NAD did not allow companies under review to defend themselves by asserting that challenges were “unreasonably delayed,” it would not participate.

Predictably, NAD referred the matter to the Federal Trade Commission.

New Political Advertisement Accountability Program in Full Campaign Mode

Digital Advertising Alliance wants everyone to know who’s behind the curtain

A Little Wigged Out

The 2016 election and the attendant allegations of foreign interference in the electoral process have ramped up scrutiny on digital political advertising. Facebook, Google and other companies that define the ad-centric profit model are sweltering under a public magnifying glass, and the ad industry at large is scrambling to provide some sort of tether between ads and the companies that inject them into the media.

Parallels

Problems we’ve covered before about the dangers and pitfalls of commercial online advertising tend to find their parallels in digital political advertising as well: Who is the ultimate source of the ad? How does the advertising affect my privacy or my security? How cleanly are the lines drawn between ads and content, and how are the teams behind both halves related to each other?

The Digital Advertising Alliance (DAA) is taking steps to address some of these questions through its new transparency and accountability initiative aimed specifically at political advertising.

The Takeaway

Some features of the new program include a new “PoliticalAd” icon to be embedded in the ad itself, serving as “an immediate, simple, and intuitive tool for people to get information on the political ads covered by the new guidelines.”

The icon will link to crucial information about the advertiser, including contact information and contribution records, with additional information customized to relevant federal and state laws. The icon is based on the DAA’s “YourAdChoices” program.

A full statement of principles for the new program can be found here; the new approach will be enforced by the Advertising Self-Regulatory Council and the Data & Marketing Association.

Fox Dismissal in Ali Case Is on the Ropes

Is the paean to the Champ admiration, or just an ad?

Shadowboxing

The Northern District of California telegraphed what may be a body blow for Fox Broadcasting Company. During a May 2018 hearing, the court indicated that a case brought against the broadcaster by Muhammad Ali Enterprises (MAE) might be allowed to continue.

MAE, which owns the IP rights for the late boxing champ, sued Fox in the Northern District of Illinois, Eastern Division back in October 2017. The complaint dealt with an advertisement that aired immediately before the Super Bowl in February of that year. The ad featured major turning points in Ali’s life and career, juxtaposed with footage of NFL greats including Joe Montana, Jerry Rice and Troy Aikman.

The suit aimed false endorsement charges against Fox under the Lanham Act, and accused the broadcaster of violating Ali’s right of publicity under Illinois state law.

The Takeaway

Shortly thereafter, the parties agreed to move the case to the Northern District of California. The California court didn’t indicate in the hearing if the case would be converted to a California claim, but Fox is hoping that it will: The company wants the case dismissed under California’s Strategic Lawsuit Against Public Participation law (AKA anti-SLAPP), which requires the judge to review if public-interest First Amendment activity is involved in the material.

So, how do things look for Fox? The court didn’t provide a definitive answer; it also rejected the company’s motion to dismiss based on the briefs alone.

“A lot of [the case] boils down to the question of whether the segment we are talking about was commercial speech or not,” said the court. “If it’s an ad, Fox has some problems.”

Fox argued that the video wasn’t advertising, but rather an “editorial message” about the Champ, and therefore protected by the First Amendment.

Given that the placement appeared during one of the most expensive advertising events of the year, there may be a lot for the court to think about. Further, several courts looking at brands’ media references to celebrities, (such as in the form of an ad congratulating the celebrity for a recent achievement), have found that the nature of the message served to associate the brand with the celebrities’ goodwill, a promotional purpose, and thus commercial rather than editorial speech. Advertisers should be wary of making any reference to celebrities without permission, or risk claims of implied false endorsement and misappropriation of rights of publicity.

Kardashian Sucked Into Lollipop-Inspired Social Media Vortex

Health-conscious consumers confuse Kim in candy-ad chaos

Live by the selfie…

Kim was just trying to do the right thing, according to consumer watchdog group and longtime Kardashian monitoring service Truth in Advertising, Inc. (TINA). In mid-May 2018, the iconic model and influencer threw up an image of herself consuming a lollipop. No big deal, right?

Well, she’s a Kardashian, and in her world, photos are often not what they seem. The lollipop was a product of The Flat Tummy Co., a lollipop, shake and tea company that promises that its products help keep women “looking good, feeling fiiiine [sic] and rocking it like the 12/10 that you are.”

“Aha!” an ad law junkie might say. “TINA is about to lower the boom on another unidentified advertisement!” Not so fast. Right in the first line of the post, Kim does the right thing and tags the photo as an advertisement. “#ad You guys…” she writes, before going into her pitch (they’re “literally unreal,” she claims).

Okay, so maybe the prose is nonsensical, but at least she was upfront about her relationship to the company, right?

More Problems

Well, yes. But then things turned sour for a whole other set of reasons. The rumblings began, as they always do, in the comments section. “I’m going to eat nothing but these for a week…Hopefully I get sick so I can sue the pants off her,” one wag weighed in. “This is in no way empowering. Choose your platform for less shallow causes,” wrote another.

Before too long, Kim was being taken to the woodshed by an internet that was aflame over the unhealthy attitudes that the ad and the product allegedly promoted in our hyper body-conscious culture. (Tori Spelling also caught grief for the same reasons after she promoted the same product on Instagram.)

Just as things were reaching a fever pitch (celebrities AND doctors were weighing in), the ad simply disappeared.

The Takeaway

Did Kim have enough of the uproar? A pang of conscience caused by the endorsement of an allegedly harmful product? No. According to Buzzfeed, Instagram claimed that it had deleted the image by accident. “We mistakenly removed content we shouldn’t have and apologized to Kim for the inconvenience caused,” an Instagram representative supposedly told Buzzfeed. There was no further explanation offered at the time.

When the image was restored, there was an important difference in the post − the sales pitch was gone.

But so was the #ad tag.

This is the sort of situation that the folks at TINA live for − a perfect case for their “Ad or Not?” feature. The pitch was gone, but so was the tag. How did TINA react to the new version?

It’s an ad.

“…those who haven’t been following along and only saw the most recent version would be unaware that it’s an ad,” the organization stated in its post. “Since the company is still prominently tagged in the image, this post requires disclosure.”

Aromatic Insect Repellent Company Fails to Drive Off Bites From FTC

Mikey & Momo settles with commission over alleged false claims and undisclosed relations

Smells Good in Here

Essential oils of geranium, lemon grass, cedar leaf, cedarwood, thyme, rosewood, balsam, lavandin, spruce, patchouli and cardamom: A terrific blend of smells, but how do mosquitos feel about it?

According to the Federal Trade Commission, they can take it or leave it.

This pungent list of ingredients provides the basis for Aromaflage insect repellent spray and candles made by Mikey & Momo, Inc. A similar blend of aromatics infuses the company’s Aromaflage Wild spray and candle products.

The company’s advertising caught the attention of the FTC, which filed a suit against Mikey & Momo in May 2018. At issue were consumer endorsements made by individuals close to the company as well as claims the company made regarding the effectiveness of the repellent products.

The Deets

N,N-Diethyl-3-methylbenzamide (commonly referred to as DEET), developed in the 1940s by the U.S. Department of Agriculture for use in jungle warfare, is the active ingredient in insect repellents. Apparently, mosquitoes can’t stand the smell of the stuff. DEET went on to be incorporated in consumer products, which measure their effectiveness by percentage comparison to the pure chemical.

At the heart of the commission’s case were DEET comparison claims made by Mikey & Momo’s product advertising − including related websites, packaging and YouTube videos. The Aromaflage products boasted a 25 percent of DEET effectiveness, while claiming to be “free of DEET, chemicals, and parabens.” In related claims, the manufacturers asserted that Aromaflage products “[repelled] mosquitoes that may carry Zika, Dengue, Chikungunya, and Yellow Fever” − serious claims given the recent uptick in Zika infections that have been linked to birth defects in children.

False Buzz

According to the commission, however, the testing that yielded the 25 percent figure was highly problematic. Human subjects were not used, the candle products were not tested at all and the test included only one species of mosquito, even though different species have varying reactions to repellents. The complaint also stated that the Aromaflage products performed worse than plain water and other 25 percent-DEET products at different stages of the testing.

The commission then turned to a series of five-star reviews the Aromaflage products had secured on Amazon.com, claiming that the reviews were written by Mikey & Momo officer Melissa Fensterstock and other individuals who had a material connection with the company − including her family members.

The Takeaway

The suit charged Mikey & Momo, Melissa Fensterstock and co-officer Michael Fensterstock with making false or unsubstantiated claims, false establishment claims and deceptive endorsements, and with a failure to disclose material connections with consumer endorsers.

A settlement followed in short order, with Mikey & Momo banned from making the alleged misrepresentations and required to furnish clear and conspicuous disclosure of any unexpected connections between the company and endorsers.

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