Stay ADvised: 2024, Issue 8

In This Issue:

• Wonderbelly Antacid's Influencer Marketing Leaves NAD with a Bad Taste
• Sephora Brushes Off "Clean" Claims in Court with a Glossy Finish in Greenwashing Suit
• Bayer Tastes Sweet Success as it Defeats "Honey Lemon Zest" Cold Medicine False Advertising Suit

Wonderbelly Antacid's Influencer Marketing Leaves NAD with a Bad Taste

The National Advertising Division (NAD) recently addressed a challenge involving Wonderbelly Antacid, an emerging brand in the antacid market, marketing itself as the "clean" alternative.

Haleon, the manufacturer of TUMS, contested various promotional claims made by Ginger Health Company about its Wonderbelly Antacid product. The challenge encompassed a variety of issues, including the nature of endorsements, claims disparaging competing antacids like Tums, and specific claims about Wonderbelly's product attributes.

With reference to the FTC's updated Endorsement Guides, Haleon contended that Wonderbelly influencers did not adequately disclose their connection to the company, and when they did, those disclosures were often buried "below the fold." One notable influencer claim involved posts by Wonderbelly investor Demi Moore, which did not disclose her role in the company. In one instance, her posts were explicitly labeled as "not an ad," despite her material connection to Wonderbelly, said Haleon. Haleon also criticized the fact that many of Wonderbelly's reposts of influencer posts did not include the original disclosures.

During the proceedings, Wonderbelly told NAD it had made changes to its influencer guidelines in keeping with the Endorsement Guides, including a contractual requirement for influencers to include the hashtag #ad and #WonderbellyPartner at the beginning of each post. Regarding the Demi Moore post, the advertiser argued that Moore usually discloses her investor role in her Wonderbelly posts, and that it had advised her to disclose this material connection in all her posts.

NAD accepted Wonderbelly's modifications to its influencer posts, except for Demi Moore's "not an ad" post. NAD noted that this claim cannot be cured with any disclosure of a material connection, as it contradicts the main claim. NAD found the statement expressly false and recommended it be discontinued.

Though Wonderbelly had argued that reposts do not require disclosure, NAD disagreed, again citing the FTC's revised Endorsement Guides, which specifically provide that re-posts by influencers should disclose the material connection.

Haleon also challenged claims that Wonderbelly contains "clean ingredients" and is "free from talc, dyes, artificial sweeteners, parabens, and genetically modified ingredients" while being as effective as competing antacids (including TUMS). These claims had appeared on the company's website, interviews, and as part of the company's origin story—discussing the link between talc and cancer.

Haleon argued that these claims conveyed the misleading message that the ingredients in TUMS are unclean and that the talc in TUMS causes cancer. After the company voluntarily discontinued most of these claims, NAD concluded that the remaining claim that Wonderbelly "is free from talc, dyes, artificial sweeteners, parabens, and genetically modified ingredients" did not convey a false and disparaging message.

Haleon also challenged Wonderbelly's marketing of its product as beneficial for the "belly," including claims such as "Wonderbelly is committed to happy bellies," "belly quelling," and "no more bad belly." Both the product label and the company site also feature an image of an animated "W" sliding down into the esophagus, landing on the belly, and turning to flame.

Haleon argued the belly claims conveyed the message that Wonderbelly provides relief for common stomach issues. NAD disagreed, finding that "the challenged advertising does not convey the implied messages that Wonderbelly Antacids provide relief to the stomach" other than as related to heartburn relief.

NAD reasoned that the product is labeled "Wonderbelly Antacid," and its indications are relief of "heartburn, acid indigestion, and sour stomach." NAD found that as long as claims are tied to their indication for use, reasonable consumers "would not expect that the Wonderbelly Antacid product treats gut health issues unrelated to heartburn."

Furthermore, the image of the Wonderbelly falling into the stomach depicted the pill's mechanism of action, said NAD. And because Wonderbelly does actually alleviate symptoms felt in the stomach, NAD concluded that reasonable consumers would not be deceived by the "belly claims."

Key Takeaways

If a post appears, promotes, and communicates like an ad, then it is an ad—regardless of how many times an influencer (or an investor/influencer) posts otherwise. Once again, NAD made clear that it, and the FTC, mean what they advise.

Sephora Brushes Off "Clean" Claims in Court with a Glossy Finish in Greenwashing Suit

Accused of "greenwashing" with its "Clean at Sephora" line, beauty retailer Sephora found itself in a court clash putting its marketing claims under the microscope. A New York federal court dismissed a class action against Sephora that hinged on the company's interpretation of "clean" and whether Sephora's representations misled reasonable consumers.

Plaintiff's class action alleged that Sephora misled consumers into believing that cosmetics bearing its "Clean at Sephora" seal did not contain any synthetic ingredients and were not associated with any health risks. The lawsuit argued that "Clean at Sephora" marketing was deceptive under New York's General Business Law (GBL), Sections 349 and 350, which address deceptive acts and false advertising.  

Plaintiff cited Sephora advertising stating, "consumers who see the Clean seal can be assured that the product is formulated without specific ingredients that are known or suspected to be potentially harmful to human health and/or the environment." Based on such claims, Plaintiff argued, reasonable consumers would be misled into believing that "Clean at Sephora" cosmetics do not contain any synthetic ingredients.

Sephora countered that it never claimed its "Clean at Sephora" products were "all-natural or free of any harmful ingredients."  The company maintained that its marketing was transparent about the criteria for the "clean" label, focusing on the absence of specific ingredients rather than an all-encompassing claim of being free from synthetics or harmful substances. Sephora asked the court to dismiss the claims because plaintiff failed to allege that reasonable consumers would be misled by the "Clean at Sephora" claim.  

The court agreed with the retailer, finding that plaintiff did not demonstrate how a reasonable consumer would be misled by "Clean at Sephora" claims. It pointed out that Sephora clearly defined its "clean" criteria and never asserted the products were entirely free of synthetic or harmful ingredients. "Plaintiff," wrote the court, "leaves the Court guessing as to how a reasonable consumer could mistake ‘Clean at Sephora' labeling and/or marketing to reasonably believe that the cosmetics contain no synthetic or harmful ingredients whatsoever." Consequently, the plaintiff's allegations did not meet the objective standard required for GBL Section 349 and 350 claims, leading to the dismissal of the lawsuit (with leave to amend).

Key Takeaways

Sephora's creation of and adherence to specified criteria for its "Clean at Sephora" label played a crucial role in the court's decision, reflecting the importance of transparency and precision in product marketing. The court's decision underscores that, in the absence of standardized terms like "clean" in the beauty industry, definitions provided by the company itself—if clearly and conspicuously communicated—may hold significant weight.

Bayer Tastes Sweet Success as it Defeats "Honey Lemon Zest" Cold Medicine False Advertising Suit

A recent lawsuit accusing Bayer Healthcare of false advertising for an Alka-Seltzer Plus brand product with a "Honey Lemon Zest" label was dismissed without leave to amend, as the court concluded a reasonable consumer would not expect the product to contain actual honey and lemon.

The proposed class action before a New York federal court claimed that Bayer falsely advertised its Alka-Seltzer PLUS cold and flu medication by featuring "Honey Lemon Zest" on the front label, despite the product containing neither honey nor lemon. The complaint argued that the "Honey Lemon Zest" claim, along with images of a lemon wedge and honey dipper, created a misleading impression that the product contains these ingredients.

By contrast, plaintiff argued, competing products that make the claim do contain these ingredients, and competing products that do not contain lemon and honey disclose this fact by labeling the product as having "Honey Lemon Flavors."

The complaint alleged violations of New York's General Business Law Sections 349 and 350, as well as common law causes of action. However, as Bayer argued and the court agreed, no reasonable consumer would conclude from the package that the product contains anything more than a negligible amount of honey and lemon—especially given that neither honey nor lemon appeared in the ingredients list.

The judge further noted that courts typically find ingredient representations misleading when the product asserts that it is made with a specific ingredient. According to the court, a reasonable consumer would note that the package does not say "made from" or "made with" honey and lemon and reach the conclusion that the claims refer to flavoring and not to actual ingredients.

The court also pointed out that the package claim is "Honey Lemon Zest," not "honey and lemon zest" or "honey and lemon." The use of this phrase or title, as the court called it, clearly indicates that it refers to the product flavor, not to its ingredients, especially because "honey" and "lemon" are commonly used as flavors rather than ingredients.

Finally, the court dismissed the plaintiff's argument about growing consumer demand for natural products, stating, "no reasonable consumer could believe that the Product is made from ‘natural ingredients.'" As for plaintiff's arguments about competing products containing honey that make the same claim, the court notes that all of those products are liquid medications and that the packages make additional claims such as "taste the real honey" and "naturally drug free."

Key Takeaways

Courts have taken different views regarding whether consumers do or should read both front of pack claims and ingredient labels. With a little help from how carefully the two were styled here, the court found that reasonable consumers will get the advertiser's point rather than the take-away advocated by plaintiffs. The facts here should be helpful to other advertisers as they develop label and advertising claims.