Remember when you were a kid and your Mom used to tell you that “sticks and stones can break your bones but names can never hurt you?” Sorry Mom. From a legal perspective what a company says in its product advertising and on its packaging can seriously hurt the company making the statements. Here are a few examples:
1. Dannon recently settled a class action suit for falsely advertising the health benefits of its Activia and DanActive yogurts and must now pay out up to $45 million to consumers. What kind of statements did they make that were so wrong? Statements regarding product health claims.
Dannon will need to be more precise in how it describes the benefits of its Activia and DanActive products in the future. No longer will they be able to use the words “clinically” or “scientifically proven” or “immunity” on labels and ads regarding the product’s ability to promote healthier digestion or improved immune system.
Instead such consumer messages must be qualified. To say, for example, that the product “helps support the immune system when eaten regularly as part of a balanced diet and healthy lifestyle” would be a better solution. The goal is to avoid crossing the “medical” line and suggesting that the product is capable of treating or curing a disease or medical disorder.
There is an Internet site set up to answer consumer questions about eligibility to claim their share of the $45 million settlement if you think you might qualify.
2. On the other end of the diet spectrum is Blimpie. They’re being sued because their “Super Stacked” sandwiches are advertised as containing “double the meat” but allegedly don’t really contain a double portion of meat when compared the non-Super Stacked equivalents on the menu. The claim is another variation of the “don’t say it unless you can back it up” variety.
The plaintiffs are seeking class action certification, so the case has a long way to go. Yet the damages that are being alleged are $75,000 per person. That’s a lot of double meat if you ask me and at any rate more trouble than the advertising value of “double the meat” is worth.
3. Last but not least is the microburst of cases accusing companies of leaving outdated patent information on their product packaging. Unfortunately, saying a product is protected by a patent when the patent has in fact expired and is no longer valid constitutes false marking. It’s a legal offense carrying with it a fine up to $500 for each package that is falsely marked. As a result the liability exposure adds up fast.
I can understand how markings can “innocently” happen. New packaging materials get ordered and the old artwork is reused. The fine print slips through the cracks.
To most people the legalese may not matter; but, to an active plaintiff’s bar it represents low hanging fruit ripe for picking. Pfizer, Procter & Gamble, and Kimberly-Clark are a few of the companies who have been recently hit with such suits.
Creative advertising and packaging that pack a punch are all part of a well thought out and carefully executed marketing plan. They’re smart business. But before finalizing such plans it always helps to look at them through a legal lens to avoid some of the expensive mistakes illustrated above. That’s even smarter business.