False Advertising & Deceptive Marketing Practices

MAY 2014 ADVERTISING, MARKETING & PROMOTIONS >> ALERT FALSE ADVERTISING & DECEPTIVE MARKETING PRACTICES: TRENDS IN LITIGATION AND GOVERNMENTAL ENFORCEMENT ACTIONS The latest developments in fashion law related to false advertising and deceptive marketing practices focus on recent class action lawsuits against cosmetics companies, socially conscious advertising, and product demonstrations in advertising.

Panelists Michael Oberlander (Senior Vice President, General Counsel and Corporate Secretary at Brown Shoe Company) and Anca Cornis-Pop (Senior Counsel of Global Marketing at Avon Products, Inc.) addressed these issues at the Cardozo Law School’s Semi-Annual Fashion Law Symposium: The Latest in Brand Marketing and Legal Compliance in a panel titled “False Advertising & Deceptive Marketing Practices: Trends in Litigation and Governmental Enforcement Actions” panel moderated by Davis & Gilbert partner Ina Scher.

CLASS ACTION LAWSUITS THE BOTTOM LINE The cosmetics industry has recently As an increasing number of claims are filed against companies in the fashion and seen an increase in class action cosmetics industries based on false advertising and deceptive marketing, companies lawsuits based on anti-aging claims. should ensure that they have adequate substantiation for all claims made prior to Though there is often no rhyme or making these claims, that their environmental claims are specific and properly reason as to why certain companies are targeted, it is highly likely for substantiated, and that their use of technology (including Photoshop) in the context companies that receive warning letters of a product demonstration is disclosed and does not create misleading impressions from the Food and Drug Administration of the functionality of their products. to be named as defendants in class action lawsuits. The footwear industry has also seen an increase in class action lawsuits based on claims made ECO-FRIENDLY CLAIMS looking at claims about the eco- related to shoes and their “muscle With the Federal Trade Commission’s friendliness of products. If a company activation” effects. The key takeaway issuance of revised “Green Guides” decides to make eco-friendly claims, from the majority of these cases is that that address environmental claims, the then it should have solid substantiation if a claim is made about the benefits of fashion industry has reacted by for those claims and ensure that the a product, this claim must be backed revising the manner in which the claims are specific and tailored to the with evidence; otherwise it is better not environmental benefits of certain product in order to prevent consumer to make the claim. products are touted. Consumer deception. advocates and others are carefully

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Attorney Advertising 1590 MAY 2014

ADVERTISING, MARKETING & PROMOTIONS >> ALERT

DEMONSTRATIONS finding that false lashes were not The National Advertising Division of the inherently deceptive or that the FOR MORE INFORMATION Council of Better Business Bureaus photograph was “literally false” as long Ina B. Scher (NAD), a self-regulatory body, recently as the use of lash inserts was clearly Partner disclosed and as long as the look of 212.468.4937 stated that using a disclosure will not [email protected] cure the misleading impression created the mascara on all lashes—real and fake—was actual. Before this NARB Rohini C. Gokhale by the use of Photoshop to enhance Associate the appearance of eyelashes in decision, photoshopping and other 212.468.4978 mascara advertisements. However, enhancement techniques were cited [email protected] the NARB recently overturned one of as deceptive in many of the anti-aging or the D&G attorney with whom you these NAD decisions on appeal, class actions. have regular contact.