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
FTC Joins Legal Barrage Against VW Over Emissions Scandal     12 Apr, 2016

Article By: William I. Rothbard

Piling on to Volkswagen’s legal woes regarding its admitted cheating on emissions tests, the...More>>

Plaintiff Steeps in Green Tea Class Action Defeat     12 Apr, 2016

Article By: Jeffrey D. Knowles, Stephen R. Freeland

A California federal court recently ruled that a consumer’s false labeling claims against tea...More>>

FTC Hits Lord & Taylor Over Native Advertising, Social Influencer Campaign     12 Apr, 2016

Article By: Linda A. Goldstein, Lauren B. Aronson

In December 2015, the Federal Trade Commission (FTC) issued its long-awaited enforcement policy...More>>

Brand Security: Why It May Be Time to Stop Manufacturing in China     4 Mar, 2016

Article By: Paula Brillson Phillips

“Made in China.” It’s on almost every product we buy. Most product marketers and distributors...More>>

California Call Recording Class Actions: Present and Future – Part II     4 Mar, 2016

Article By: Yosef Mahmood, Ana Tagvoryan

As plaintiffs have run into greater difficulty certifying call-recording class actions under...More>>


Breaking News
White House Supports FCC in Unlocking Set-Top Boxes     20 Apr, 2016

News By: Doug McPherson

WASHINGTON – The White House is supporting the Federal Communications Commission’s (FCC)...More>>

Email Privacy Act Approved; Microsoft Sues Justice Dept. Over Gag Orders     20 Apr, 2016

News By: Doug McPherson

WASHINGTON – In a rare bipartisan vote of 28-0, the House Judiciary Committee approved the Email...More>>

Viewers Flock to Netflix, but Digital Video Growth Continues to Shrink     20 Apr, 2016

News By: Doug McPherson

NEW YORK – Consumers continue to flock to Netflix as 126.9 million people are expected to view it...More>>

Interactive Video Ads More Engaging Than Pre-Roll, Banners     20 Apr, 2016

News By: Doug McPherson

NEW YORK – A new study says interactive video is more engaging than pre-roll or standard banners.More>>

NBCU to Use ‘New Currency’ for Upfront Guarantees     20 Apr, 2016

News By: Doug McPherson

NEW YORK – NBCUniversal reports it will use non-Nielsen data to guarantee audiences for targeted...More>>


DRMA Spotlight
DRMA Spotlight: Perfecting the Process     1 Mar, 2016

Article By: Thomas Haire

It’s been one year since we turned the DRMA Spotlight on Los Angeles-based Swipe Payment...More>>