Switzerland: Prohibited and controlled advertising

 

Prohibited products and services

What products and services may not be advertised?

Certain products are banned from public advertising altogether, such as prescription drugs. Further, there are several restrictions concerning broadcast advertising: in addition to alcohol and tobacco, advertisements for gambling and lotteries without licence, for political parties and political persons either holding or running for office, and for religious beliefs, are prohibited. Topics that are subject to the popular vote and religious denominations as well as the people and institutions representing them may also not be advertised on the radio or television.

Prohibited advertising methods

Are certain advertising methods prohibited?

Any aggressive methods, such as exercising physical or psychological pressure, cornering prospective clients or in any other way limiting their free decision-making abilities, are prohibited. Spam emails are allowed only if the sender of the advertisement is visibly and correctly recognisable, the message includes a ‘remove me’ or ‘unsubscribe’ option that, when clicked, removes the recipient from the mailing list and if the recipient has given either prior consent to their inclusion in the mailing list or has previously purchased something from the sender. Additionally, mass advertising is restricted, and with the newly adopted article 45a of the Telecommunications Act, telecommunications service providers are now obliged to combat unfair mass advertising. Further, newly adopted provisions of the Federal Act against Unfair Competition (UCA) restrict advertising calls and add a respective opt-in obligation. They also prohibit spoofing in connection with advertising calls. There are a few more specific rules such as, for example, prohibiting the use of loudspeakers on motor vehicles as well as individual cantonal regulations. Furthermore, the guidelines of the Swiss Commission for Fairness ban gender-discriminatory advertising and consider advertising as sexist and, thus, unfair, if it lacks a natural link between the person embodying the gender and the advertised product.

Protection of minors

What are the rules for advertising as regards minors and their protection?

There is no special law concerning the protection of minors in Switzerland: thus, such regulation in the area of advertising falls under the provisions of the UCA. Products unsuitable for minors may not be advertised in media aimed at this target group. Material unsuitable for children must be clearly marked as such. Advertising must not exploit the inexperience and credulity of minors and may especially not display the performance and use of the product in an exaggerated or false manner. It is not appropriate to compromise the social values of minors by, for example, undermining the authority of their parents, displaying violent content or linking the product to social standing. 

The Federal Radio and Television Act stipulates specific rules on advertising to minors in broadcasting, such as the rule that programmes for children may not be interrupted by advertising at all. The advertising of tobacco products directed at minors is prohibited. There are industry codes self-restricting the advertisement of further goods to minors, such as e-cigarettes.

Credit and financial products

Are there special rules for advertising credit or financial products?

In general, the UCA is also applicable to the advertising of credit or financial products. In public advertising of consumer credit, the name of the company of the creditor must be easily and clearly recognisable. The law requires clear indications in the advertisement concerning the net amount of the credit, its total costs and the actual annual interest, as well as at least one example calculation. The Swiss Banking Association advises its members to refrain from any targeted advertising. It further discourages any sort of misleading statements such as ‘savings credit’ and any statements that could encourage uneconomical behaviour.

The advertising of financial instruments is further regulated by financial market regulations (such as the Federal Act on Financial Services or the Federal Banking Act). For example, any advertisement for financial instruments in the sense of financial market law must be readily recognisable as such. Advertisements for financial services (eg, asset management, investments advice) must be marked as such. Non-compliance is punishable with fines of up to 100,000 Swiss francs.

Therapeutic goods and services

Are there special rules for claims made about therapeutic goods and services?

Specific provisions for the advertising of therapeutic goods and services are included in the Federal Ordinance on the Advertising of Medicinal Products, the Federal Ordinance on Medical Devices and the Federal Act on Medicinal Products and Medical Devices. Furthermore, such advertising also falls under the general legal provisions of the UCA.

The applicable law differentiates clearly between advertising targeted at professionals and advertising targeted at the general public. It contains specific provisions and lists regulating what may or may not be advertised or included in such advertising. Advertising directed at the general public for prescription-only medicinal products is prohibited. Advertising for over-the-counter medicinal products to the general public is, in principle, permitted. However, medicinal products which have not (yet) obtained a marketing authorisation in Switzerland may not be advertised.

Food and health

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

Advertising of foodstuffs is regulated by the Federal Act on Foodstuffs and the Ordinance on Foodstuffs and Commodities. Claims concerning the effects or properties of a food that, according to current scientific knowledge, it does not possess, or that are not sufficiently scientifically substantiated are prohibited. Health claims are explicitly prohibited in the advertising of foodstuffs save for a list of authorised nutrition claims. Advertisers may apply for special approval for claims from the Federal Health Ministry. Any nutrition or health claims must be correct and formulated in a way that they are understandable to consumers. Advertisements may not claim possible health hazards in the case of non-consumption of the product and must always include indications on the importance of a varied and balanced diet and a healthy lifestyle. Any health-related claims may not be associated with claims concerning weight loss or the duration and extent thereof.

Alcohol

What are the rules for advertising alcoholic beverages?

Advertisements for alcoholic beverages are, among others, regulated by the Federal Act on Foodstuffs and the Federal Act on Alcohol. As a general rule, advertising for alcoholic beverages must not be directed at children or adolescents and may not include any type of health claims. Additionally, many cantons and municipalities have chosen to issue a general prohibition for public advertising of alcoholic beverages.

The advertising of alcoholic beverages of more than 15 per cent by volume is subject to severe restrictions: for example, advertising is permitted only if its content is directly related to the product; it is prohibited to advertise spirits on the radio or television, on public buildings, on sporting grounds or on public transport.

Tobacco

What are the rules for advertising tobacco products?

Advertising tobacco products is specifically regulated in the Federal Ordinance on Tobacco Products and Products Containing Tobacco Substitutes. It is prohibited to advertise tobacco products on the radio or television and to direct such advertisements towards children and adolescents. All advertisements are subject to a declaration requirement as well an obligation to display warnings.

The organisation ‘Swiss Cigarette’ has established an agreement with the Swiss Commission for Fairness that further specifies and limits tobacco advertising. It particularly states that a general warning must always be in the three official Swiss languages and take up at least 10 per cent of the advertising surface.

In October 2021, the Federal Parliament has passed a revised Tobacco Product Act which will prohibit tobacco advertising on posters, in cinemas, on sports grounds, in and on public buildings and in and on public transport; tobacco advertising aimed at minors; and sponsorship of events for young people or of events of an international character. This Tobacco Product Act constitutes a counter-proposal to the people’s initiative 'Children without Tobacco', which aims at even stricter regulation of the advertisement of tobacco products. Hence, the content and date of coming into force are unknown at present and dependent on the outcome of voting in February 2022.

Against the applicable provisions in the Federal Act on Foodstuffs, based on a recent decision of the Federal Supreme Court, e-cigarettes containing nicotine can now be sold and advertised in Switzerland without particular restrictions as regards the protection of minors if they meet the technical requirements of an EU or EEA member state. However, one of the applicable soft law codes prohibiting sales and advertising to minors has recently been extended to 'other nicotine-containing products' such as e-cigarettes. Under the new Tobacco Products Act, e-cigarettes are intended to be regulated extensively (including their advertising).

Gambling

Are there special rules for advertising gambling?

The offering and advertising of money games are subject to the strict regulation of the Money Games Act. Advertising is allowed only for licensed money games and if it is not misleading or intrusive. In addition, the advertising must not be directed at minors or persons barred from playing money games. The Act further prohibits advertising that implies that the players’ knowledge, skills or other characteristics influence their chances of winning without this actually being the case. There are additional restrictions on the form and time of the advertising. Inadmissible advertising to blocked or underage persons is punishable by a fine of up to 500,000 Swiss francs.

Lotteries

What are the rules for advertising lotteries?

Lotteries are also regulated by the Money Games Act. In general, the running of lotteries must be licensed. As regards the advertising of lotteries, this can be referred to the respective rules applicable to money games. Accordingly, advertising must not be carried out in a misleading or intrusive manner and may not be directed at minors or blocked persons.

Promotional contests

What are the requirements for advertising and offering promotional contests?

The Money Games Act has lifted the previously existing general ban on games of chance for sales promotion. Provided that promotional contests are carried out for a short period only and do not create any danger of excessive gambling, they are exempted from the scope of the Act and the respective rules on licensing and advertising do not apply. Case law will have to show what the terms ‘promotional’, ‘short period’ and ‘danger of excessive gambling’ mean. However, stricter rules apply to media companies: they are permitted to offer and advertise promotional contests only if participation is free and unconditional on purchase.

The UCA requires that all participants in a competition be informed in detail about the conditions of participation and winning. Any ambiguities and misleading information are not permitted in the case of games and promotional contests.

Indirect marketing

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Sponsorship in radio and television broadcasts is permitted; however, it must be clearly distinguishable from advertising and the editorial content. Sponsors must be named at the beginning and end of broadcasts and advertising statements may not be included in broadcasts. Companies whose products fall under an advertisement prohibition may usually not act as sponsors. Product placements constitute sponsorship and may not have any advertising effect for the sponsor and towards third parties. Broadcasts with product placements must indicate this at the beginning thereof. Product placement is prohibited in children’s shows.

Other advertising rules

Briefly give details of any other notable special advertising regimes.

Owing to their recognised need to protect their local language, some cantons have special provisions under which advertisements are required to be in a certain language.

Certain professions such as lawyers and doctors are subject to advertising restrictions. In addition, political advertising on the radio and television is banned; however, it is allowed in other media.

According to the Coat of Arms Protection Act, federal, cantonal and communal coats of arms or related symbols and characteristics may not be used in advertising by private persons.

Jones Day -  Armelle Sandrin-Deforge and Karim Tarantino

Conversatorio Internacional: Normativa alimentaria: ¿Hacia dónde vamos?

 Conversatorio Internacional: Normativa alimentaria: 

¿Hacia dónde vamos? 

http://www.assal.gov.ar/conversatorio/ 

Inscripción primer encuentro*: 

https://docs.google.com/forms/d/e/1FAIpQLSeMpZExTGIdtrvIK_i9PzDctidUo80_EladRHoTDZ34g6qdHg/viewform 

* Cada encuentro precisa una inscripción por separado. 

Michael K. Goodman and Sylvia Jaworska, “Mapping Digital Foodscapes: Digital Food Influencers and the Grammars of Good Food”

 

Geoforum (2020) academia.edu/44295367 [published online before print: 30 January 2020[1]].

 Abstract

Drawing on recent debates around food, space and digital media, this paper introduces and develops the concepts of the digital foodscape and ‘good’ food grammars. Through a quantitative and qualitative analysis of the digital platforms, discourses and personas, we investigate the ways a key set of digital food influencers (DFIs) construct, curate and share the meanings of good food. We first explore who these influencers are, describe what platforms they inhabit, how the variable social media affordances work through these platforms and the notions of good food they construct. We then focus specifically on DFIs’ communicative practices on Twitter to analyse the core discourses DFIs produce and those that are taken up by audiences through re-tweets and likes as well as the re-tweeted tweets of DFIs. Overall, our findings suggest that first, good food grammars are being constructed by rule setters beyond the already well-established food personalities and celebrity chefs of the UK’s foodscape. Yet, these grammars also re-inscribe a form of white, hetero-normative middle- and upper- class privilege that produces a particular grammars of good food. Second, different social media and digital platforms provide space for diverse good food grammars given their variable affordances. Twitter, in particular, is the place where the grammars of DFIs take on non-food themes such as self-empowerment, inspiration, charity campaigning and awareness raising. Third, the notions of good food in DFI grammars revolve around a range of constructions, with the most elevated related to ‘clean’ eating and/or ‘clean’ lifestyles that combined healthy, ‘free from’ diets with fitness regimes and expand DFI grammars - and ultimately their brands – into a more holistic lifestyle brand. This paper’s initial empirical and conceptual foray into digital foodscapes and DFIs opens up space for further research on food and digital media within Geography and beyond.

 

 

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[1] See: < https://app.box.com/s/ck64nn1q87g6sixl9bozh6sgcn16hj6p >.

 

"Food & Beverage Litigation Update - January 2021" by Mark Anstoetter et al.

 

USDA Releases Final Rule on Hemp Cultivation

The U.S. Department of Agriculture has released its final rule governing the cultivation of hemp, which will take effect March 22, 2021. The draft rule would have required hemp to be shown to contain less than 0.3% tetrahydrocannibanol (THC) on testing conducted within 15 days of harvest, a proposal that drew criticism from several parties. The final rule reduces some of the requirements, such as allowing 30 days to test and raising the negligence threshold to 1% rather than 0.5%. The rule also allows some flexibility for states to develop testing methods that take into account variables such as regional environmental factors.

UK Opens Consultation on GE Foods

The U.K. Department for Environment, Food & Rural Affairs (Defra) has opened a consultation on the regulation of genetic technologies in food. “It mainly focuses on the regulation of gene edited (GE) organisms possessing genetic changes which could have been introduced by traditional breeding,” the consultation states. “[W]e are using this opportunity to engage separately and start gathering views on the wider regulatory framework governing genetically modified organisms (GMOs).”

“EU legislation controlling the use of GMOs was retained in the UK at the end of the transition period (after 31 December 2020). This retained legislation requires that all GE organisms are classified as GMOs irrespective of whether they could be produced by traditional breeding methods. Defra’s view is that organisms produced by GE or by other genetic technologies should not be regulated as GMOs if they could have been produced by traditional breeding methods. Leaving the EU provides an opportunity to consult on the implications of addressing this issue. We recognise there is a spectrum of opinions on these topics, and we are consulting to provide an opportunity for all views to be shared.”

Poultry Processing Speeds Executive Order Withdrawn

President Biden has withdrawn an executive order that would have allowed 25% faster processing speeds on poultry lines in meatpacking plants. The policy change would have allowed plants to process 175 slaughtered birds per minute, up from 140, in accordance with a proposal by the U.S. Department of Agriculture’s Food Safety and Inspection Service. Criticism of the proposal came from advocacy groups that argued the faster speeds with endanger workers, especially after a study purportedly showed that plants with waivers allowing the faster speeds had higher COVID-19 transmission rates.

California Files Prop. 65 Action Against Seafood Cos.

California Attorney General Xavier Becerra filed a lawsuit against five importers, wholesalers and distributors of seafood, alleging they sell fish with levels of cadmium and lead high enough to require warnings governed by the Safe Drinking Water and Toxic Enforcement Act (Prop. 65). California v. Pacific Am. Fish Co. Inc. (Cal. Super. Ct., filed December 28, 2020). The companies—Pacific American Fish Company, Rhee Bros., Seaquest Seafood Corporation, Jayone Foods and Clearwater Seafoods—sell products such as clams, mussels, octopus, oysters, squids and snails.

“When California’s consumers, restaurants, and supermarkets purchase seafood, they shouldn’t have to worry about whether the products they’re buying contain toxic chemicals,” Becerra said in a press release. “The seafood industry has a responsibility to ensure the safety of its products – and to warn consumers of any risks. I hope this lawsuit serves as a warning to any company that might skirt its responsibilities under Proposition 65. The California Department of Justice will hold you accountable.”

Consumers Challenge Tuna Content in Subway Tuna Sandwiches

A putative class action has alleged that Subway Restaurants Inc. sells tuna products that “do not contain any tuna nor have any ingredient that constitutes tuna”—the products “are completely bereft of tuna as an ingredient,” according to the complaint. Dhanowa v. Subway Restaurants Inc., No. 21-0498 (N.D. Cal., filed January 21, 2021). “As independent testing has repeatedly affirmed, the Products are made from anything but tuna,” the complaint asserts. “On the contrary, the Products are made from a mixture of various concoctions that do not constitute tuna, yet have been blended together by Defendants to imitate the appearance of tuna. Defendants identified, labeled and advertised the Products as ‘tuna’ to consumers, when in fact they were not tuna. Yet, Defendants have systematically and consistently continued to label and advertise the Products as ‘tuna.'” The complaint does not note what the Subway products are purportedly composed of if not tuna. The plaintiffs allege violations of California’s consumer-protection statutes as well as fraud, misrepresentation and unjust enrichment.

“Icelandic Skyr” Misleadingly Made in New York, Consumers Allege

Two consumers have filed a putative class action alleging that Icelandic Provisions Inc.’s skyr cultured dairy product is misleadingly marketed as made in Iceland despite being produced in New York. Mantini v. Icelandic Provisions, Inc., No. 21-0618 (S.D.N.Y., filed January 23, 2021). The packaging for the skyr, which features the text “Traditional Icelandic Skyr” and photos of an Icelandic countryside, “gives consumers the belief it is made in Iceland,” the complaint asserts. Although the back of the package indicates that the product is “made in Batavia, NY with domestic and imported ingredients,” the plaintiffs allege they “relied upon the representations and indications of the Product’s origins – literally and figuratively – in Iceland, and desired to purchase such a product.” Alleging fraud, negligent misrepresentation, unjust enrichment and violation of Pennsylvania’s consumer-protection statute, the plaintiffs seek class certification, injunctive relief, damages, costs and attorney’s fees.

Shook, Hardy & Bacon L.L.P.

AD-ttorneys@law – January 2021 #2 (BakerHostetler)

 

Mars Mired in Milk Chocolate Melee

Yet another suit is hawkish over Dove Bar packaging claims

Strike Two?

Here’s a follow-up to the recent battle between Mars Wrigley Confectionery and Mohammed Garadi. If you recall — and of course you do; you hang on our every word, right? —Mars and Garadi were locked in a deadly duel of catty memos regarding Mars’ motion to have the case dismissed. Mars led off its missive in support by lambasting Garadi’s counsel for filing a strike suit — a class action among a hundred others that employs “a raft of recycled complaints” against food manufacturers that “leverage the threat of putative class claims and force early settlements.”

We focused on the vanilla claims in Garadi’s class action — and no, we don’t mean the boring ones. Garadi argued that since Mars’ chocolate-coated vanilla Dove Bars were … well … represented as “vanilla,” the “representation on the front of the Product is likely to deceive reasonable consumers into believing the Product has a vanilla taste, provided predominantly or exclusively from vanilla beans … .”

Since Garadi claimed that the bar didn’t taste like vanilla, this was cause for him to sue for misrepresentation, fraud and unjust enrichment under New York law.

Take a Hint!

There was another claim in the suit, though, regarding the chocolate covering of the delicious vanilla center. It’s largely semantic, which is why we focused on the vanilla argument instead, but it’s back in a new form.

In the words of Garadi’s complaint: “Federal regulations require that where a food consists of milk chocolate and vegetable fat ingredients are used, the ‘name of the food is milk chocolate and vegetable fat coating.’”

Garadi called the product packaging “clever” because Mars was dodging the proper nomenclature by representing the bar as “Vanilla Ice Cream With Milk Chocolate” — “milk chocolate” is indeed one ingredient in the product, but only one ingredient in an overall recipe. Mars “could have used a term such as ‘chocolatey coating’ and consumers would have gotten the ‘hint’ that the coating was like chocolate, but not real milk chocolate. Instead, consumers are deceived and pay more for the Products.”

All this by way of review. So — what’s the follow-on?

It’s a class action filed by Garadi’s counsel on behalf of Steven Beers, a consumer from Putnam County, New York.

The Takeaway

Beers’ class action won’t do much to dispel Mars’ “strike suit” accusations against Garadi and his lawyers. First, it targets Mars once more for misrepresentation, fraud and unjust enrichment under New York law. Second, it accuses Mars of misusing the milk chocolate moniker on the same Dove vanilla bar product.

However, just as in Garadi’s case, there’s a real legal argument being made in the new case — except there’s a twist. In Beers’ case, the complaint focuses entirely on the misleading chocolate claim and does not mention the issue of the “natural flavor” of the vanilla. It expands on the relatively short chocolate argument in the Garadi case, again noting that consumers do not expect chocolate to include vegetable oil, but also that chocolate with vegetable oil has a different “mouthfeel” and taste.

Mars had argued in its opposition memo that milk chocolate was the “primary coating ingredient” and therefore, Garadi had no standing to sue. Did that argument inspire the change in tactic?

Are These False Origin Claims Half-Baked?

Suits against possible Hawaiian and Mexican origin claims provide extra carbs for plaintiffs

Limey or Canuck?

Thomas Dodd of Staffordshire, England, isn’t Thomas Dodd anymore.

He’s Celine Dion.

Dodd, a huge fan of the Canadian songstress, was bummed about not being able to see her during the COVID-19 pandemic. One night, he apparently indulged in a bit too much of the spirits. “I can’t really remember the night and forgot all about it the next day,” said Dodd. He knows he watched one of her concerts online, but that was about all he remembered.

A few days later, official documents from the state arrived confirming the name change, which he had apparently performed online in a blacked-out state.

Near, Far, Wherever You Are …

Why tell this particularly crazy story? We just love it, of course, and we wanted you to hear it.

But …

Should we be pressed for a reason — let’s say, by our AD-ttorneys@law editors — we would note that acknowledging exactly where you’re from is crucial when devising marketing copy. Staffordshire Celine Dion, for instance, shouldn’t start a “Real Canadian Poutine” business in England without calling an ad lawyer.

With that ham-handed setup, let’s look at two recent origin cases.

Grinch

First up is Yonkers consumer Robert Galinsky’s class action against King’s Hawaiian, manufacturer and creator of a bread-product subset known as “Hawaiian Rolls.” Galinsky notes that since King’s Hawaiian created the product in the 1950s, numerous other companies have put out their own Hawaiian roll product. (Yet again — we didn’t know this was a thing.)

The case, filed, remarkably, on Christmas Day in the Southern District of New York, also notes that while King’s Hawaiian has sued some of these companies over the years for allegedly copying its distinct orange floral packaging design, it has never sued them over the now “commonly accepted generic name” of Hawaiian Roll.

The plaintiff acknowledges that the company was right in not doing so because “Hawaiian rolls” has become a generic name for this type of product. While that name on its own would not suggest that the rolls are from Hawaii any more than MoonPies are from the moon — a flourish we enjoyed from the complaint — plaintiff alleges that the company’s name (King’s Hawaiian) and the “Hilo, Hawaii” statement on its packaging go a step too far and deceive consumers. The defendant will undoubtedly feel aggrieved because while the product is now produced in California, it was founded in Hilo, Hawaii, a fact it is entitled to promote. Nevertheless, the complaint alleges doing so deceives consumers and leads them to pay more than they would have otherwise for this item. Galinsky is suing for misrepresentation, fraud and unjust enrichment under New York law.

(If the phrase “misrepresentation, fraud and unjust enrichment under New York law” sounds familiar to you, it’s the same package of charges brought by Messrs. Garadi and Beers in our article, above, about Mars Wrigley Confectionery. It turns out that Galinsky is represented by the same lawyer who was accused of launching a fleet of “strike suits” against the candymaker. He never rests, even on Christmas!)

The Takeaway

Our second case has progressed a bit further.

California consumer Juan De Dios Rodriguez sued Olé Mexican Foods in California’s Central District last November under a similar set of allegations, laying out violations of the state’s Consumers Legal Remedies Act, False Advertising Law and Unfair Competition Law. According to his complaint, the company’s tortillas are “deceptively labeled and packaged to target consumers who are interested in purchasing tortillas and other products from Mexico.”

And what are the offending gestures? The phrase “El Sabor de Mexico!” or “A Taste of Mexico!” The “Mexican flag on the front and center of the packaging” and “the brand name ‘La Banderita’ meaning ‘the flag’, which is a reference to the Mexican flag displayed prominently on all the Products.”

Olé filed a motion to dismiss in late December, and it provides a handy origin-claim overview. It leads off with the three factors considered in “determining whether a plaintiff has plausibly alleged that a defendant’s product packaging is likely to deceive reasonable consumers as to geographic origin.” They include the geographic specificity of the defendant’s representations, disclosures disclaiming the product’s actual geographic origin, and whether the defendant merely “evokes” the cuisine, culture, history, people, spirit or feeling of a country or a place.

Olé’s motion asserts that the original allegations fail to meet these tests. Our favorite: “‘A Taste of Mexico!’ … is ‘vague and meaningless,’ as ‘who can say what [Mexico] tastes like?’”

We’re waiting to hear from the court on this one, but for now let’s hope no one takes that taste challenge literally.

Fashion Brand Sues … Ice Cream Company?

 

Hip creamery may be poking fun at contemporary brand

Still Life With Handbag

We confess to not fully understanding Off-White’s clothing lines. “Rooted in current culture at a taste-level particular to now,” the product line features a mash-up of casual (baggy hoodies, sweats, soccer-jerseyish tees, slippers and sneakers), straitlaced (military coats, formal straight-leg pants, classic evening wear, leather double-breasted jackets) and other (Caravaggio prints?!) fashionwear.

But what sets Off-White off is its reliance on bold graphics and logos — the most recognizable example of which is a diagonal black-and-white striped design. It’s a precious commodity, so much so that the brand is pursuing a lawsuit to defend it against, of all things, an ice cream company.

Gilt by Association

Afters Handcrafted Ice Cream is a California chain with more than 25 locations in the Golden State. The most conventional aspect of Afters — its ice cream, with straightforward, irony-immune flavors like “cookie monster” and “peanut butter s’mores” — is the next-to-last item on the company’s website homepage. Pride of place belongs to the pictures of models hanging around, only occasionally eating ice cream. Their main purpose seems to be promoting After’s extensive collection of swag.

Guess what’s printed on the Afters swag? Black and white diagonals. Is there a similarity there? You be the judge.

In any case, Off-White filed suit in the Central District of California in November, alleging trademark infringement and unfair competition.

The Takeaway

Afters responded to the suit with an answer to the complaint about a month later, and perhaps unsurprisingly the defense promises parody and fair use arguments. There’s an interesting discussion of the entire matrix of defenses over at The Fashion Law, which suggests that, in addition to the parody arguments, Afters may be preparing an argument that the infringing designs “lack secondary meaning.”

To lose on this defense would be an indignity to the fashion house. It would mean that the court believes the public does not associate Off-White’s designs with Off-White in the first place. The Fashion Law references “Off-White’s pattern of co-opting and registering … otherwise ordinary symbols as trademarks — from crosswalk-inspired diagonal lines and the use of quotation marks to stylized arrows that appear on no shortage of packaging.”

By raising mundane symbols to the status of fashion, did Off-White cut off their ability to defend its own designs?

Procter & Gamble Sued Over “Plant-Based” Claims

But does plaintiff make the connection between specific tags and general claims?

Roll Tide

Procter & Gamble have been selling laundry detergent in one form or another for 70-plus years, so their marketing savvy is probably a safe bet. Trend after trend after trend — Tide has surfed them all.

(Sorry.)

The current American marketing tsunami is tinted green, of course — the celebration (obsession perhaps?) of all things “natural,” “sustainable,” “eco-conscious,” “eco-friendly,” “organic” and so forth.

And so we have, inevitably, Tide’s purclean plant-based laundry detergent.

Plant-Based Pileup

And so we also have, inevitably, a class action. Paula Ogurkiewicz, a citizen of Illinois, takes exception to several of the packaging claims made by Tide on the purclean label.

First, that the product is “plant based.” Next, the green leaf background on its front panel, which suggests “the Product is derived entirely from eco-friendly plant-based materials.” Further, text stating the product includes “0% dyes, phosphates, chlorine brighteners,” which “promotes the implication that the Product is derived entirely from eco-friendly plant-based materials.” A back-label brag that purclean is “A Powerful Plant-Based Clean You Can Feel Good About.”

Finally, that the product claims “‘Gentle on Skin,’ ‘Plant Based,’ ‘No Dyes’ and ‘Formula Made with Renewable Electricity’” “give the impression that the Product is derived entirely from eco-friendly plant-based materials.”

The Takeaway

Given these assertions, Ogurkiewicz alleges she was misled when she purchased the product, because purclean “is only 75% biobased content” — the rest of the detergent consisting of cleaning aids “derived from petroleum.”

She’s alleged unfair or deceptive conduct under several state consumer protection laws, violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, and unjust enrichment.

But on first impression, Ogurkiewicz’s class action doesn’t quite add up. It’s hard to see how some of the challenged claims, like “Gentle on Skin,” “No Dyes” and “Formula Made with Renewable Electricity,” have anything to do with whether the product is made entirely from plant-based materials. As for the rest of the challenged claims, it will be interesting to see how the parties and the court handle the question as to when a claim about the nature of some of the ingredients in a product implies a broader claim about all the ingredients in the product. Tide will tell.

We’ll let you know what happens.

Consumers Trade Personal Information for Nothing At All

Third-party award advertiser failed to deliver promised awards.

Grab Bag

Tapjoy, an ad platform operator, specializes in offering in-app awards to players on mobile games. It makes money from third-party advertisers who use its platform to promote their products or services. We’d love to start this story with something more colorful than that simple assertion — for instance, introducing Tapjoy through an amusing story about one of the games for which it provides services — but the folks at the Federal Trade Commission (FTC or Commission) don’t share the names of the games Tapjoy has worked on.

We’ll just have to settle with this sentence from the FTC’s recent complaint against the company: “Tapjoy’s advertising platform appears in certain mobile games, including, for example, games related to war, shopping, sports, and home improvement.”

Sigh.

Dark Bargain

You may be familiar with the advertising convention embraced by Tapjoy — game currency such as “diamonds” or “coins” are earned for specific user actions that are promoted by a screen that interrupts the main action of the game. The user might be offered a discount purchase with an online retailer, told to visit a website or given a one-week trial for a third-party service. The user might also be required to provide personal information while signing up.

And that, according to the FTC, is where it all goes wrong.

The FTC claims that users who forked over their personal information failed to receive the promised award; many, in fact, began to be harassed by spammers and sales calls. In the words of one disappointed user: “All I ever get from completing any Tapjoy offers are SPAM emails and Telemarketers calling my cellphone.”

If that weren’t enough, the Commission alleges that Tapjoy instituted shady customer service practices to deal with user complaints. “In many instances,” the FTC writes, “consumers find that they cannot contact Tapjoy, or that Tapjoy does not respond to their communications, wrongfully ‘closes’ their complaint, or delays responding until consumers have incurred additional charges or other obligations related to the third-party advertisement.”

The Takeaway

To make matters worse, customers complained in outrageous numbers — hundreds of thousands of complaints that Tapjoy was aware of but failed to address.

The Commission launched its complaint at the beginning of January and settled with Tapjoy the same day; the company got hit with deceptive acts and practices charges under the FTC Act.

The settlement is standard fare — first, a prohibition “from misrepresenting the rewards it offers consumers and the terms under which they are offered.” Second, terms and conditions of the offers must be clearly and conspicuously displayed. Third, Tapjoy must take responsibility for monitoring and disciplining errant advertisers.

Three things that any company should do before the lawsuit.