Stay ADvised: 2025, Issue 6

In This Issue:

• Reckitt Benckiser Tastes Sweet Success as Mucinex Honey False Ad Dismissed
• False Ad Plaintiff Says Booty Cream Maker Must Wriggle Out of Deceptive Tummy-Tuck Result Ads
• NAD Nixes Eye Cream "Eyelift" Claims, Says Before-and-After Pics Must Be Qualified

Reckitt Benckiser Tastes Sweet Success as Mucinex Honey False Ad Dismissed

Plaintiffs alleging that Reckitt Benckiser falsely advertised certain Mucinex products as containing honey failed to sufficiently allege that the claims were misleading, according to the New York federal court that dismissed the complaint.

The plaintiff filed a class action lawsuit claiming that consumer goods giant Reckitt Benckiser falsely advertised four Mucinex products as containing honey as an ingredient and that this deceptive marketing violated New York General Business Law Sections 349 and 350.

The front labels of the cold relief products all include some version of the phrase "Honey & Berry Flavor," with the word "Honey" featured in bold, and feature images of "a honey dripper dripping honey over a honeycomb" and a "swirling liquid honey background." Plaintiff alleged that a reasonable consumer would interpret the honey imagery together with the placement and size of the word "Honey" to communicate that the product contains honey.

The court disagreed, finding that the front labels did not make any express representations that would mislead the reasonable consumer. Perhaps surprisingly, what sunk plaintiff's allegations was not that the front label did not contain any explicit statements that the Mucinex products were made with honey (although this did not work in plaintiff's favor). Rather, the court was persuaded that no reasonable consumer would read the phrase "Honey & Berry Flavor" and interpret it as plaintiff suggested they would—as communicating that the product contains honey as an ingredient. In the label claim, the word "Honey" is used as an adjective modifying "Flavor," wrote the court. It communicates to the reasonable consumer that the product contains honey flavor, not honey as an ingredient. Representing that a product is honey-flavored is quite different from representing that it contains honey, it added.

Though the word "honey" did appear in bold, this stylistic difference was not so prominent as to sever the word "honey" from the rest of the phrase, wrote the court. Instead, it suggested that honey rather than berry was the dominant flavor. The honey imagery also could be interpreted to denote honey flavor rather than ingredient use, added the court.

To the extent plaintiff argued that the front label was ambiguous, the back label resolved any ambiguities. First of all, and significantly, because the label was ambiguous rather than outright misleading, the plaintiff could be expected to look at the back label to rule out any ambiguity, said the court. Any reasonable consumer unsure about the front label could peel back the label and clearly read that honey was not listed as an ingredient.

Plaintiff argued that the consumer should not be required to peel back a label to confirm an assumption about the product, based on a series of 9th Circuit decisions. The court found that not only were these cases not binding on the 2nd Circuit, but here the consumer would not be misled by the front labels, so the fact the consumer would have to go through a second step of peeling a back label to confirm what was already stated in the front label was not relevant.

Key Takeaways

It's yet another case finding that consumers have the obligation to look to the back if the front-of-pack claims are ambiguous. Here, the fact that the product was a drug helped the defense. A consumer reading the front label active ingredients "guaifenesin" and "expectorant" for a drug such as Mucinex might more reasonably conclude that the honey refers to a flavor rather than an ingredient, compared with a consumer purchasing a food product with honey on the front label.

False Ad Plaintiff Says Booty Cream Maker Must Wriggle Out of Deceptive Tummy-Tuck Result Ads

You can't back those claims up, or so alleges a plaintiff in a newly filed class action lawsuit claiming that Maelys Cosmetics makes some pretty deceptive claims about the cellulite-busting and skin-firming powers of its products.

According to the complaint, Maelys' advertising for its B-FLAT Belly Firming Cream, B-THICC Booty Enhancing Mask, and B-TIGHT Lift & Firm Buttocks Mask grossly misleads consumers by promising to deliver results similar to a "tummy-tuck" surgery (but without the surgery!), get rid of cellulite, reduce stretch marks, and eliminate flabby skin.

The company's tactics violate false advertising laws, says plaintiff. This "massive marketing campaign" utilizing influencer and affiliate content that the company reposts is deceptive. Specifically, plaintiff calls out what she alleges are heavily photoshopped "before-and-after" images meant to "lure in vulnerable and unsuspecting consumers."

Yet plaintiff claims that studies have shown that over-the-counter cosmetics can't work on cellulite, which is a deep tissue issue, and that "meaningful reduction of cellulite typically requires lifestyle change or professional treatments." Same goes for stretch marks, she adds. OTC products can temporarily improve the appearance of cellulite and stretch marks, but that's about it.

Maelys, however, consistently advertises significant "tummy-tuck" results, calling its products a "tummy tuck in a container" in one ad featured in the complaint, for example. Before-and-after  images claim "the proof is in the picture" alongside images of skin exhibiting a dramatic change from "flabby" to smooth.

Plaintiff avers that the reasonable consumer, who has little knowledge about the science of cellulite or the meaning of "clinically proven," would have no reason to know that the before-and-after images are doctored, altered or deceptive in any way.

According to the complaint, Maelys also falsely claims that the products are clinically proven to achieve the advertised results, though this is false and the products have not been clinically proven to deliver tummy-tuck-like results or get rid of flabby skin—by competent and reliable scientific evidence. Scientifically these claims cannot be true, adds plaintiff.

Key Takeaways

Advertising promising dramatic anti-aging results is hardly something new—but advertisers often take the risk figuring perhaps they won't be called to task. We shall see what happens here.

NAD Nixes Eye Cream "Eyelift" Claims, Says Before-and-After Pics Must Be Qualified

Speaking of before-and-after photos and the marketing of results akin to those from cosmetic procedures, the National Advertising Division (NAD) at least would likely have a lot to say to Maelys Cosmetics in the class action case also discussed in this issue. Of course, NAD's authority, burdens of proof, and analysis are different from the courts' … but, just saying …

Which brings us to NAD's recently launched self-monitoring inquiry into advertising claims made by SBLA Beauty advertising claiming that its Eye Lift Wand delivers results similar to an eyelift surgery, is "the first-ever eyelift at home, clinically proven to lift & smooth the eyelid in minutes" and "Smooths and lifts eyelid creases, hooded eyelids, lifts eyebrows & brightens the eyes."

On most issues, NAD weighed against SBLA in its decision, shutting down the "eyelift at home" type claims, and asking the advertiser to modify some claims and qualify others to suit them better to the proffered evidence.

SBLA kicked things off by arguing that it was not making the implied claim that the Eye Lift Wand delivers similar results to plastic surgery, but NAD disagreed, noting that it has cautioned advertisers before not to make unsupported claims that beauty products have the same benefits as cosmetic procedures.

Although SBLA didn't explicitly mention "surgery" or "cosmetic procedure," NAD explained that claims such as "try the first-ever eyelift at home" suggest that the product works similarly to an eyelift which is a cosmetic procedure. Making this claim next to before-and-after images showing noticeable eyelid lift and other skin improvements strengthened this message.

In context, NAD's found that the claim conveyed the message that the product was an at-home alternative to plastic surgery—which standing alone might be fine—claiming comparable results, not so much. While SBLA's evidence did show improved eye appearance, the results were not comparable to those of an eyelift plastic surgery, so the "try the first-ever eyelift at home" portion of the claim should be discontinued, NAD said.

NAD also analyzed the product efficacy claim "clinically proven to lift & smooth the eyelid in minutes." It found that the study offered in support had an appropriate sample size, testing period, relevant test population, expert and self-assessments and blinding protocol. There were some issues with a too-short washout period, but the study suffered from other fatal defects.

Even without the washout period issue, NAD concluded that the study did not support the lift and smooth claim. Some parameters in the study correlated with the key product benefits SBLA promotes: namely opening up the eyelids, lifting droopy eyelids, tightening the skin of the entire eye area, diminishing crow's feet and under-eye puffiness, and improving skin texture and discoloration. But the claim "clinically proven to lift & smooth the eyelid in minutes" promised "visible and immediate improvements." These are objective claims requiring objective support, while the study used subjective assessments by the participants that they saw an improvement in eye appearance. Meanwhile, the objective expert assessments showed progressive rather than immediate improvement for all parameters save eye brightness. Thus, NAD recommended that claim be modified to qualify the immediate results to refer only to the eye brightness.

The evidence did show statistically significant improvements over time for the rest of the product benefit claims except for the "smooth" claim, where the evidence was not a good fit for the claim. NAD said the claim should be modified accordingly.

As for the before-and-after photographs, these are product performance claims, and they appeared to show an "outlier" rather than typical results. The absence of timepoint references was also problematic, said NAD.

Key Takeaways

New! Challenges to Beauty Advertising Claims Centering on Comparisons to Plastic Surgery and Before and After Shots—Now Available in Court System or NAD Flavors. Warning: Results May (Or May Not) Vary Dramatically Based on Whether Claims Reviewed by NAD or Court (based on different standards of review and application methods. Results not guaranteed. Court case results still to be determined). Get Yours Today!