My Pillow: More Than $1 Million Reasons to Think About Your Claims13 Dec, 2016 By: Gary D. Hailey, Jeffrey D. Knowles, Venable LLP’s Advertising
On Oct. 31, a group of district attorneys from 10 California counties served up a settlement with My Pillow – the marketer of the long-running infomercial hit product of the same name – containing almost $1 million in civil penalties for false and deceptive advertising, as well as extensive recordkeeping and disclosure requirements. Under the agreement, My Pillow will also donate more than $100,000 to certain California charities that provide overnight accommodations to the homeless and domestic violence victims.
The lawsuit was spawned by an “investigation” by a Connecticut-based consumer group calling itself Truth In Advertising.org regarding My Pillow’s advertising practices. In February 2016, the group sent at warning letter to My Pillow alleging that the company’s advertising violated the FTC Act and threatened to refer the company to the Federal Trade Commission (FTC) if it did not change its advertising practices.
The settlement highlights a population of law enforcers and consumer advocates that, although little known, will likely become increasingly important to direct response marketers in the near future.
Did You Say DA?
While many marketers are familiar with the enforcement powers of FTC and state attorneys general, it may come as a shock to learn that in California, county district attorneys have similar powers to bring consumer protection enforcement matters.
Although the DAs have possessed these powers for some time, they have recently exercised them with greater frequency, especially in cases relating to health and wellness claims.
On Oct. 27, the Alameda County district attorney’s office filed suit against My Pillow in Alameda County Superior Court, alleging that the company made unsubstantiated claims that the pillow could help treat or relieve conditions such as allergies, asthma, fibromyalgia, insomnia, migraines, neck pain, restless leg syndrome, sleep apnea, and TMJ. Such claims are known as “structure/function claims” because they purport that a product will modify how the structure of the body or how the body functions. Such claims can only be made for approved medical devices and drugs.
In addition, the company allegedly advertised its pillow as the “Official Choice of the National Sleep Foundation,” without disclosing to consumers that the company was providing material support to the foundation in exchange for the endorsement.
Less than one week after filing the My Pillow complaint, the district attorneys and the company settled the case.
What’s in the Settlement?
Under the stipulated order, My Pillow is prohibited from making structure-function claims or claiming that its products can “cure, mitigate, treat, or prevent” any disease or disease symptom unless those claims are substantiated by at least one “adequate and well-controlled human clinical study on the product or another substantially equivalent device.”
Another interesting aspect of the order is that the company is required to remove any claims similar to those the settlement prohibits My Pillow for making that are posted by third parties to My Pillow-controlled social media.
The settlement prohibits My Pillow from advertising itself as the “official” or preferred product of any non-profit organization or trade group that focuses on sleep or sleep conditions, and it requires that all material connections between individuals endorsing the product and the company be disclosed in close proximity to the endorsement.
Lastly, the settlement requires that My Pillow maintain and make available to the California DAs that were part of the case all communications with the Food and Drug Administration (FDA) seeking approval as a medical device, as well as records of all studies the company uses to substantiate future advertising claims. It must also maintain a collection of all data, consumer complaints, and inquiries from government organizations that call the company’s advertising claims into question.
What’s the Takeaway?
While there are several reasons that marketers – especially those making health-related claims – should take notice of the My Pillow settlement, the most important may be that there are more eyes than ever watching your marketing and advertising practices.
In addition to the FTC, state attorneys general, and plaintiffs’ attorneys, California district attorneys and consumer groups are policing marketers’ claims aggressively.
Jeffrey D. Knowles and Gary D. Hailey are partners in Venable’s Advertising, Marketing and New Media Practice Group. They may be reached at (202) 344-4000.