Monthly Archives: July 2016

Avoid Marketing Language That Sounds Great, But Lacks Proof!

FTC investigates company for unsubstantiated claimsA company in the mosquito repellent biz is out a few hundred thousand dollars.

Why?

Marketing fines.

Ultimately, the Federal Trade Commission feels the company lacked sufficient scientific proof to support structure-function promotional claims.

Why should you care about this case? It’s a reminder to stay on the right side of the “substantiation line” when promoting products.

The Incident: Company Makes Scientific Claim In Marketing Pitch

Some months ago, the president of a mosquito repellent company appeared on a home shopping channel. During the broadcast, he allegedly implied his product guarded against Zika virus.

Well, FTC staffers quickly caught wind of the claims, hopped on their bureaucratic broomsticks, and flew into regulatory action. Ultimately, the nation’s consumer watchdog felt the company snubbed compliance by suggesting the wristbands prevented Zika-infested mosquito attacks.

Excerpts from the FTC’s press release:

“On numerous occasions, HSN offered [the product] for sale on its home shopping channel.”

“During many of those broadcasts, [representatives] made claims about [the product], including, but not limited to, claims that wearing the band provides users with a ‘cocoon of protection,’ whether the product is worn on the wrist or hung on objects like a chair or stroller. During numerous broadcasts, the [representative] claimed that the protection offered by the band would last for 96 hours or up to 96 hours. In numerous broadcasts, the [representative] spoke of a testimonial from a man who went hiking in the jungles of Colombia. The representative said that the man, who was wearing [the product], got no mosquito bites, and that a woman hiker did not wear a band and got numerous bites. The representative also said that, after the woman put on [the product], she got no more bites.”

“The defendants took advantage of those concerns, and peddled a product without having scientific support that it effectively prevented mosquito bites.”
The company […] took advantage of fears about the Zika virus and other mosquito-borne illnesses.

FTC Defamation Lawsuit On The Way?

Though confident in the science, executives at the company settled quickly, arguing it was “a good business decision to cut [their] loses.” In a statement, they suggested the FTC made “false and misleading” statements when announcing the settlement, which raises the question: is the wristband company angling for a defamation lawsuit against the FTC? Now that would be interesting; not so much in practicality (privilege would probably KO any possibility for a win), but from a theoretical perspective.

The Takeaway: A mosquito repellent company lost about $300,000 because of an overly aggressive structure-function claim about Zika virus.  With that in mind, here’s a bit of friendly, lawyerly advice: remember this case the next time you’re tempted to “cross the compliance line.”

Connect With An FTC Investigation Attorney

Is the FTC hounding you? Are you being accused of “unfair and deceptive marketing” or some other violation of the FTC Act? Contact Kelly Warner. We’re an AV-rated firm that’s saved many a client from the FTC’s grip. Get in touch today.

Article Sources

Cha, A. E. (2016, May 25). FTC: Beware of companies peddling products to protect against Zika mosquitos. Retrieved July 11, 2016, from https://www.washingtonpost.com/news/to-your-health/wp/2016/05/24/ftc-beware-of-companies-peddling-products-to-protect-against-zika-mosquitos/