Response Magazine Site Response Expo Site Direct Response Market Alliance Site Job Board

 

   Log in
  
The Voice

FTC Loses Contempt Action Against Garden of Life

6 Mar, 2012 By: Linda A. Goldstein


The Federal Trade Commission (FTC) suffered a striking loss in its efforts to hold Garden of Life, the marketer of various dietary supplements, in contempt of a previous consent order entered into by the company with the FTC in 2006.

The FTC alleged that Garden of Life violated the order by: falsely claiming that its Raw Vitamin C, Raw Calcium and Grow Bone System contained no soy allergens; making baseless claims that its Ocean Kids Omega 3 product has brain boosting powers and other benefits for children; and making unfounded claims that RAW Calcium and Grow Bone System are superior to other calcium supplements. The court ruled that the FTC had failed to prove that any of the challenged claims violated the previous consent order. There are a number of fascinating highlights from the case that should be of interest to every DR marketer.

First, the court expressly stated at the outset of the decision that in order for a defendant to be held in contempt of an order, the order must be clear, definite and unambiguous. While the court did not in this case ultimately need to address the issue of whether the original Garden of Life consent order was sufficiently clear and unambiguous, its warning on this issue is likely to fuel the FTC’s current efforts to move away from the more general “competent and reliable scientific evidence” substantiation standard to a more specific requirement that certain claims be supported by one or more clinical studies.

Secondly, the Court’s analysis of the “no soy allergen” claim should be music to the ears of marketers who routinely rely upon their suppliers for their ingredient claims. Garden of Life defended this claim by arguing that it was not the manufacturer of the product, and that it had been assured by the manufacturer that the product did not contain any allergens. The court agreed with Garden of Life and expressly ruled that the allergen statements, prepared by the manufacturer, constitute “competent and reliable scientific evidence.”

The court’s approach to the Ocean Kids Omega 3 product claims is particularly noteworthy. The FTC will often retain its own experts to critique a defendant’s studies or to contradict the expert opinions upon which a defendant has relied, and the courts have historically given great deference to the FTC’s experts. In this case, the Court ruled that simply because the FTC’s expert disagreed with Garden of Life’s expert on certain aspects of a study’s trial design does not mean that Garden of Life’s expert opinion did not constitute competent and reliable scientific evidence.

Perhaps the most interesting aspect of the case involved the FTC’s challenge to alleged claims by Garden of Life that its Raw Calcium and Grow Bone System offered superior health benefits to other calcium supplements. The court took a very narrow view of the existing consent order. The order provision at issue prohibited Garden of Life from making representations about the “absolute or comparative health benefits of its products.” The court determined that this provision only applied to claims about the health benefits of Garden of Life products or to claims that individuals who use Garden of Life products would achieve certain benefits compared to those who do not use the product. In the court’s view, the FTC’s interpretation of the order provision in question was not a sufficiently tailored interpretation of the injunctive provisions of the consent decree. The court further determined that even if the FTC’s interpretation of the order provision was correct, it had taken Garden of Life’s claims out of context, and the advertising was not making the claims that the FTC had alleged.

This decision will likely have an impact on FTC order provisions in the future, but for those facing initial enforcement actions or contempt proceedings, the court’s analysis and decision certainly provides some useful precedent.

Linda Goldstein is chair of the Advertising, Marketing and Media division of Manatt, Phelps & Phillips LLP, based in the firm’s New York office. She can be reached at (212) 790-4544 or lgoldstein@manatt.com.


Add Comment

DRMA Putting Unity in Community


The DRMA is vibrant and growing marketing alliance with one singular focus: to serve and support marketing professionals that utilize performance-based, trackable and measurable marketing.

If you are responsible for a product or service that is sold and marketed to a consumer via direct response, digital or data-driven tactics, or if you are part of the supply chain that helps facilitate a marketing and sales campaign, then the DRMA is a vital organization to join.

The DRMA uses a combination of education and networking to foster clear channels of communication and transparent pathways to nurture long term relationships in a comfortable and neutral environment.



DRMA Voice
Staying Out of the Weeds: Employment Law Meets Medical Marijuana     15 Aug, 2017

Article By: Janice P. Gregerson, Douglas B. Mishkin

Although marijuana use remains illegal under federal law, 29 states – beginning with California...More>>

Lessons Learned From the Proactiv Class-Action Settlement     15 Aug, 2017

Article By: Linda A. Goldstein

In May, a California judge granted final approval of a settlement of a class action lawsuit filed...More>>

The Importance of Global Brand Strategy     15 Aug, 2017

Article By: Lindsey Carnett

Your direct-to-consumer product is selling well in the United States. Congratulations! Now it’s...More>>

Community Transforms How We Do Business     15 Aug, 2017

Article By: Nicola De La Salle

As we move toward the end of August, it would seem that the coming months are some of the busiest...More>>

A Click in the Pants: How Employers Can Fight Employee Click Fraud     18 Jul, 2017

Article By: Lauren Stocks-Smith, Ari N. Rothman, Douglas B. Mishkin

Your employees may be engaging in click fraud against you or your competitors. Either can cost you...More>>


Breaking News
National TV Ad Revenues Dip; Analyst Expresses Concern     16 Aug, 2017

News By: Doug McPherson

NEW YORK – National TV advertising revenues of major media companies dropped 1 percent in the...More>>

FX’s Landgraf Calls Metrics Driving Netflix, Amazon, Hulu a ‘Stiff Headwind’ for Traditional TV Programmers     16 Aug, 2017

News By: Doug McPherson

BEVERLY HILLS, Calif. – FX Networks chief John Landgraf told those gathered at the Television...More>>

Facebook’s Launches ‘Watch’; Analysts Say It Could Be a Game Changer     16 Aug, 2017

News By: Doug McPherson

MENLO PARK, Calif. – Traditional TV and YouTube have a new competitor: Facebook’s newly...More>>

ANA Report Cites Transparency, Oversight Issues; Ad-Tech Execs Admit Problems     16 Aug, 2017

News By: Doug McPherson

NEW YORK – The Association of National Advertisers’ (ANA) report criticizing industry...More>>

Report: Birchbox on the Auction Block, Walmart a Potential Buyer     16 Aug, 2017

News By: Doug McPherson

NEW YORK – Online subscription beauty retailer Birchbox is discussing a potential sale with...More>>


DRMA Spotlight
DRMA Spotlight: Thriving With Change     1 Apr, 2017

Article By: Thomas Haire

Since early 2016, when Cannella Response Television acquired Media Properties Holdings (MPH) —...More>>