CSPI to FDA: Move to the Front!
Watchdog barks at industry efforts to highlight nutrition
facts
Gesundheit
FOPNL. It’s sweeping the globe. What is it, you ask? A new
government agency? An awful skin condition? A variant of the common
cold?
No, it’s something far more benign – FOPNL stands for
“front-of-package nutrition labeling” and, according to
the Center for Science in the Public Interest (CSPI), it’s
become a bit of a fad.
“[FOPNL aims] to give consumers information about the
healthfulness of foods that is clear, quick, and easy to access and
understand,” the watchdog group wrote in a recent citizen’s petition to the Food and Drug
Administration (FDA) advocating mandated FOPNL for food products.
“Dozens of government-led FOPNL systems with a wide variety of
formats are already in use ….”
The reasoning behind the petition is straightforward:
“Well-designed interpretive FOPNL can significantly improve
the healthfulness of foods selected by consumers and prompt product
reformulation.”
But of course, there’s a twist.
Public vs. Private
The United States has lagged behind, a fact that CSPI seems to
be a tad miffed about: “The United States has not yet adopted
a government-led FOPNL policy,” the watchdog wrote. “CSPI
first petitioned the FDA to adopt a FOPNL system in 2006. The
petition called for a symbol on the principal display panel that
would communicate to consumers the healthfulness of foods.”
Despite hearings a year later, the FDA “never formally
responded to CSPI’s petition.”
According to the petition, the National Academy of Medicine
issued a report recommending that government agencies should
“develop, test, and implement a single, standardized FOP
system to appear on all food and beverage products.”
Perhaps sensing a shift in attitudes, the Consumer Brands
Association and the Food Marketing Institute cooked up their own
FOPNL system in response, called “Facts Up
Front,” which, according to CSPI, “simply takes
information on the calorie and nutrient content per serving from
the Nutrition Facts label and places it on the front of the
package.”
But the industry-sponsored FOPNL doesn’t cut it as far as
CSPI is concerned. Its objection is a matter of design.
The Takeaway
“While Facts Up Front increases visibility of nutrition
information by moving it to the principal display panel,” CSPI
writes, “the system does not provide consumers any guidance on
how to interpret this information, beyond what was already
available on the Nutrition Facts label.”
If that weren’t enough, CSPI claims that the industry model
“allows companies to highlight nutrients they believe show
their products in a favorable light. Critics – including CSPI
– have argued that this system would not do enough to
influence food choice and is instead intended to forestall
regulation.” Moreover, it alleges that Facts Up Front has no
positive effects on consumer nutritional choices whatsoever.
CSPI advocates what it calls “interpretive FOPNL”
– labels that provide evaluative judgments on the nutrient
content in the food. These evaluations are often expressed through
iconography – colorful symbols like red, yellow and green
badges or nutrition “grade” systems – that
emphasize visual cues over the pure information used by Facts Up
Front (see Appendix A of the petition for examples).
We’ll see if CSPI’s petition produces any movement over
at the FDA, but until then, marketers might have their creative
teams flex their muscles with upfront nutrition information
designs. It would be good preparation and it might boost your brand
– as long as your product can stand up to the invited
scrutiny.
Influencers on Notice
over NFTs
TINA warns a dozen celebs, promises action against the Bieb,
Witherspoon
Nobody Parties Like Truth in Advertising
Parties
Ever imagine a gathering including Meek Mill, Gwyneth Paltrow,
Snoop Dogg, Logan Paul and Madonna? Oh, and, we dunno, Eva Longoria
and Justin Bieber, just for kicks?
We hadn’t either (and frankly, we would have been much more
interested in such an affair when we were in our 20s. Now it just
seems … tiring). But you can find them all, along with a clutch
of other celebs, milling about on Truth In Advertising’s (TINA)
NFT influencer promotion spotlight page.
What’s the occasion?
TINA, it seems, is taking a definite interest in how
non-fungible tokens (NFTs) are marketed by the rogues’ gallery
known as the league of celebrity influencers.
Float Like a Butterfly
TINA ain’t afraid of anyone, even the most fearsome of
influencers.
Consider the letter sent by Laura Smith, TINA’s legal
director, to boxing phenom Floyd Mayweather. It’s a model of
understatement: “We are aware that Floyd Mayweather has
promoted certain [NFT] companies on his social media
channels,” Smith wrote. “While TINA.org is not currently
addressing a specific deceptive marketing issue pertaining to such
posts, we have found that celebrity NFT promotions is an area rife
with deception ….”
You can almost hear the emphasis on “currently.”
What sort of deception, you ask? “A failure to clearly and
conspicuously disclose the promoter’s material connection to
the endorsed NFT company,” she continued, “as well as the
omission of other material information, such as the risks
associated with investing in such speculative digital assets
….”
These are the general marketing failures TINA is warning about.
While most of the letters contain the same cautions, two
celebrities – Bieber and Reese Witherspoon – are
accused of outright deception (see the Bieb’s letter here). The difference
appears to be that TINA purportedly knows of existing
partnerships/ownership interests between Bieber and Witherspoon and
the NFT companies they tout, while for the other celebrities, they
only warn that if any such connections did exist they must be
disclosed. Notably, TINA is not taking the position that simply
owning an NFT would constitute a material connection.
The Takeaway
Given the recent turmoil in the cryptocurrency markets –
in terms of both pure value and some of the fishy marketing that
has been plaguing the sector – it’s no surprise that
NFTs, which are built on the same underlying blockchain technology,
are receiving renewed attention.
That’s not because blockchain is inherently bad, but because
its utility and scope are still being tested and proved, which
means regulators have been slow to act. This lag leaves the markets
that depend on the technology open for abuse.
NFTs can and should spur a revolution in the ownership of online
goods, but the fundamental chaos surrounding blockchain-built
technologies still needs to be tamed or the markets that represent
them will continue to limp along.
And while the technology underpinning these new offerings may be
new, the same old disclosure requirements apply. If someone has a
material connection to a company that they’re posting about on
social media, then that connection must be disclosed.
CARU Makes Over Deficient
Developer
LO.L. Surprise!-inspired app was inappropriately gathering
kids’ information
Gag Me with a Spoon?
OMG!!!
We took the L.O.L. Surprise! O.M.G. Fashion Doll quiz!
We described our fashion style (“All about the glam and
glitter”), picked the phrase that speaks to our inner diva
(“Born for the spotlight”) and picked two other answers
that we didn’t understand and discovered that we were Swag: “the baddest and most fabulous B.B.
on the block!”
We don’t know what any of this means. Oh, except that in the
formulation of MGA Entertainment, the creators of L.O.L. Surprise!
dolls, “O.M.G.” means “Outrageous Millennial
Girls.” Which is confusing, because the L.O.L. Surprise! brand
of dolls was released in late 2016, not exactly the sweet spot for
marketing to young millennials.
In any case, L.O.L. Surprise! toys were HUGE, becoming the No. 1
toy brand for Generation Z in 2017 and spawning countless spinoffs
and accessories from the original line of big-eyed, dayglo-garbed
dolls.
It’s one of these spinoffs we’re interested in today
— the L.O.L. Surprise! Room Makeover app.
My. Brain. Hurts.
Yes. An app. We downloaded the makeover app and tried to
“play” it – at least the part of it that seemed
like a game. There were jewels and balloons and jugs you had to
pop, for some reason, which would hatch eggs that would yield …
things to makeover an apartment with?! But in the end, it seemed
like a collection of exploding loot boxes and well, loud music,
neon colors and clashing, confusing patterns.
We have a headache.
But now, Firefly Games, the owner and operator of the L.O.L.
Surprise! Room Makeover app, has its own migraine, and it isn’t
about gameplay.
The Children’s Advertising Review Unit (CARU) ran across the
app in its routine monitoring of kiddie content and found it wanting in several areas.
First, CARU noted that Firefly’s main privacy policy
conflicted with the makeover app’s specific privacy policy. The
main policy does not address collection of personal information
from users under age 13, while the app claimed the information it
gathered from children was used to allow kids to interact with the
game. When collecting personal information from kids, companies are
required to comply with the Children’s Online Privacy
Protection Act (COPPA). Firefly was, according to CARU, not in
compliance with COPPA because while its app collects children’s
information, as admitted to its privacy policy, there is no attempt
to screen those users through an age gate or to obtain verifiable
parental consent for users under age 13.
The watchdog group also took Firefly to task for a plethora of
advertising violations, including ads that forced the user to watch
a video or download an app to continue the game, video ads that
mimicked the game itself – thereby encouraging direct
interaction with the ads – and “some advertisements that
were unsafe and inappropriate for children.”
The Takeaway
CARU found that Firefly’s missteps violated COPPA as well as
CARU’s advertising and privacy protection guidelines. Firefly
agreed to fix the situation.
It’s worth noting that during the course of the
investigation, Firefly maintained that a significant portion of the
makeover app’s audience was adults who felt nostalgia for the
toys of their youth, but this fact did not absolve the company from
making the app safe for kids who wanted to use it. A site or app
directed to a mixed-use audience, in which personal information is
collected from both adults and children, is still required to
comply with COPPA.
CARU’s recommendations to the company are a handy laundry
list for any developer whose audience, in whole or in part,
consists of kids:
- Provide clear and understandable notice of its children’s
information collection and use practices. - Provide a COPPA-compliant means of obtaining verifiable
parental consent. - Design its app with children in mind to ensure it does not
deceive or manipulate them. - Provide clear and conspicuous disclosures of all ads.
- Ensure any methods offered by the app to exit are clear and
conspicuous. - Monitor and ensure advertisements are safe and appropriate for
children.
Whether or not your site or app will attract a “mixed
audience” depends on a variety of factors, including how
it’s marketed (are cartoons involved?) and any actual knowledge
of users’ ages. If you’re unsure what side of the line your
site falls on, it’s worth considering that penalties for COPPA
are strict: up to $46,517 per violation. Address regulations that
cover kids up front and you won’t have to worry about who might
download your app.
Mask Maker Buys Chinese Products, Relabels as Made in USA
Second-time offender racks up $150K in fines from
FTC
In NIOSH We Trust
There’s not much to laugh about when it comes to the
COVID-19 pandemic, but we may have found something.
It’s on page 9 of a 23-page complaint brought by the Federal Trade
Commission (FTC) against one Adam Harmon and his two companies,
Axis LED Group and ALG-Health LLC.
It’s a bald eagle holding an N95 mask in its beak.
The image is unintentionally funny, in the way that only poorly
photoshopped ads are unintentionally funny. The eagle is holding
the mask by one elastic strap, but it’s slack. Which makes no
sense. Because if the eagle is perched somewhere, the straps should
be taut from the weight of the mask. If the eagle is flying, the
mask should be dragging the bird down like a malfunctioning
parachute.
In any case, it’s a bald eagle holding an N95 mask in its
beak. It’s just funny. Is the eagle delivering the mask to
someone? Is it heading to a masks-required eaglet gender-reveal
party? Is the eagle an anti-masker who just snatched the N95 off
someone’s face?
Ill Conceived
The ad is for just one of Harmon’s line of personal
protective equipment (PPE) products, including masks, gowns and
gloves, which the FTC alleges he and his companies began selling in
– you guessed it – early 2020.
(Is there a product you should be more wary of than
opportunistic PPE?)
Part of Harmon’s pitch was that his products were made in
the USA – he even went so far as to name one N95 offering a
“patriot mask,” which is either a bold, bipartisan
attempt to make masks palatable or the most poorly conceived
marketing ploy ever.
We don’t know how well the patriot masks sold, but a larger
issue undermined Harmon’s marketing plan: According to the FTC,
the made in the USA claims were untrue.
“In fact, in numerous instances, the products advertised
… were wholly imported from China,” the FTC claimed.
“Indeed, in numerous instances, Defendants received Chinese
KN95s, unpacked the completed respirators, stripped off Chinese
origin labels, printed ALG [Health] and NIOSH [National Institute
for Occupational Safety and Health] labels on the respirators, and
then re-boxed the respirators in ALG packaging with MUSA
labels.”
As all our readers know, “Marketers should not claim
products are [made in the USA] unless they can substantiate such
products are ‘all or virtually all’ [made in the
USA].”
The FTC filed a complaint against Harmon and his entities in
early August, alleging violations of the COVID-19 Consumer
Protection Act, the Made in USA Labeling Rule and the FTC Act.
The Takeaway
The proposed settlement isn’t particularly
interesting: Harmon and his companies are required to stop making
the claims, provide substantiation for future claims and fork over
more than $150,000 in civil penalties. The defendants were also
subject to a $2.8 million redress judgment, which was suspended
based on their inability to pay.
What is noteworthy is the fact that the defendant was
required to pay civil penalties. If you didn’t think the FTC
could do that without an existing order, then you’re to be
forgiven. After all, the FTC only gained that ability in July of
last year after finalizing the Made in USA rule, which authorizes
significant civil penalties. This is the third case filed since
then, and we can expect Made in USA to be a hotbed of enforcement
going forward.
But what’s remarkable about this case – although
nothing should surprise us at this point – is that Harmon
should have known better. The FTC had taken him to task once
before, when it tagged him for marketing LED lights manufactured in
China as made in the USA back in 2017. Enforcement only went so far
as a closing letter in that case based on remedial action by the
company and presumably some amount of enforcement discretion.
In the latest case, Harmon claimed that his products were
superior because of their supposed origin in the United
States. “In numerous instances,” the FTC wrote,
“defendants have represented, expressly or by implication,
that because they are all or virtually all made in the United
States, Defendants’ products are safer or provide superior
protection from COVID-19.”
Cousteau Society Settles Right-of-Publicity Suit with
Granddaughter
Family conflict puts name, image, vocabulary and wardrobe up
for a fight
Just Say Merci
If you are under the age of, let’s say, something around 50,
have we got a treat for you.
You were probably too young to remember the glories of Jacques
Cousteau’s American television programs, but thanks to the
magic of the Internet, they’re yours to experience today.
Cousteau was a famed oceanographer whose love for the sea was
palpable and often contagious. His American TV shows –
The Undersea World of Jacques Cousteau and The
Cousteau Odyssey – were visually stunning, often
dramatic introductions to fascinating environments and the
beautiful and grotesque sea animals that populated them. If you
were a nerdy kid in the 1970s or ’80s, chances are you wanted
to join Cousteau on his ship, Calypso, and travel the
oceans popularizing science with the rest of his scruffy, laid-back
crew.
Sure, there are all sorts of high-resolution nature
documentaries available today. But the saturated, old-fashioned
film, coupled with Cousteau’s magisterial presence, give
The Undersea World an inimitable gravitas.
Check out The Sleeping Sharks of Yucatan or Lagoon of Lost Ships. There’s tons
more to watch, too. Extra bonus: They’re narrated by Rod
Serling.
And if you don’t like them, or don’t care, that’s
fine – just don’t stuff us in the gym locker again,
okay?
Famille Contre Héritage
You can guess from the preamble how excited we were to write
about a
right-of-publicity case involving Cousteau. It crossed our
sonar a while ago, but its recent resolution meant that we could
finally say a few words about it.
The case started in 2019, when The Cousteau Society Inc. sued
Cousteau’s granddaughter, Celine Cousteau, and her production
companies for Lanham Act trademark infringement, false association,
violations of Connecticut common law trademark and unfair
competition law, and right of publicity violations under French and
Connecticut law.
When Cousteau died in 1997, the complaint claims, the mariner
had been estranged from his immediate family for some time,
engaging in notable battles with his son over his plans to build
restaurants called “Cousteau’s” in Fiji and Hawaii.
The society claims that Cousteau transferred his intellectual
property and publicity rights to it as a way to quell the
family’s attempts to dilute his legacy.
Celine started her own documentary enterprise, founding a
production company to produce “multimedia content with an
emphasis on short films concerning environmental and socio-cultural
issues,” according to a court ruling in the
case. And that set off the family conflict once again.
The Takeaway
The parties recently settled on undisclosed terms, but there are a
variety of interesting aspects to the case, regardless of its
abrupt end.
The suit concerned two films made by Celine – Celine
Cousteau, The Adventure Continues and Tribes on the
Edge. The society argued that both films violated its marks by
sounding very similar to “The Journey Continues,” which
is a tag it uses in marketing materials. The company also alleged
that “Celine Cousteau used images of Jacques-Yves Cousteau,
used the mark JACQUES-YVES COUSTEAU, and traded off Jacques-Yves
Cousteau’s legacy to market and promote the Documentary through
a promotional teaser video.” Even the familiar red cap that
Cousteau often wore, which Celine used in a press kit for The
Adventure Continues, was an alleged violation.
In addition, the society objected to Celine’s reference to
Cousteau’s legacy – namely, that her films were
continuations of his explorations and her ruminations on how her
explorations were related to, indeed an extension of, his. The
court notes that this aspect of the films was protected by artistic
expression exceptions.
The result was a sprawling ruling on a motion to dismiss, which
preserved the society’s right-of-publicity claims and some of
the Lanham Act allegations. Perhaps more light will be shed on the
nature of the settlement, but for now, we’re not sure what
drove the parties together and what shape Celine’s films will
take to satisfy the agreement – or if they will ever be seen
at all.
Check Out Our Latest Blog Posts
There Is Bad Press: FTC Defendant Sues the Agency
Over an Over-the-Top Release
P.T. Barnum famously said, “There’s no such thing as
bad publicity.” Oscar Wilde gave that quote his own spin and
said, “There’s only one thing in the world worse than
being talked about, and that is not being talked about.” Well,
some folks most definitely disagree when a whole settlement
potentially is tanked over a press release.
The Matrix of Guardrails for the Metaverse Grows
(Plus Weekend Movie Viewing Recommendations)
We are not quite at the Matrix moment of a red
pill/blue pill choice yet, but we are moving closer every day to
the possibility of a fully immersive virtual world. And the
regulators and watchdogs are already thinking about how we can
protect the kids when they venture not outside into the real world
but inside into the parallel online metaverse.
Recent Summary Judgment Decision in FleetCor Case
Spells Trouble for CEOs and Disclaimers
A recent federal court decision found that FleetCor, a company
that sells fuel card services to businesses, and its CEO had
violated the FTC Act through a series of deceptive and unfair acts
and practices. It is not every day that the FTC sues the CEO of a
publicly traded company, and it is even less often that we see a
federal court opinion on the topic, so this decision warrants a
deep dive.
TINA Issues Warning Letters to Celeb NFT
Endorsers
From Eminem to Snoop Dog, Tony Hawk to Lionel Messi, William
Shatner to Brie Larson, music, sports and Hollywood celebrities
have eagerly jumped on the non-fungible token (NFT) bandwagon.
Whether launching their own collections, purchasing an expensive
profile pic or simply endorsing new artists, celebrities have
embraced blockchain technology and been extolling the virtues of
owning a unique digital collectible across their social media
platforms.
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