Advertising Law

FTC Rules Against "All Natural" Sunscreen Maker

In a final order, the Federal Trade Commission granted summary decision against California Naturel, Inc. for falsely advertising its sunscreen products as "all natural" when a synthetic ingredient constituted eight percent of the formula.

Despite the presence of dimethicone, the company promoted its "all natural" sunscreen with claims that it contained "only the purest, most luxurious and effective ingredients found in nature." The Commission issued an administrative complaint asserting violations of Sections 5 and 12 of the Federal Trade Commission Act and moved for summary decision.

California Naturel admitted that eight percent of its sunscreen product contained the synthetic ingredient, but argued that its advertising was not false or misleading. As of early 2016, the company added a "readily visible" disclosure statement on its website, notifying consumers about the presence of dimethicone. The disclaimer stated: "The FTC requires us to add the following: Dimethicone, a synthetic ingredient, is 8% of the sunscreen formula, the remaining 92% are natural products."

The three-member Commission first considered what claims the advertiser conveyed in its marketing. Finding the message "clear from a facial analysis," the FTC said it was undisputed that the sunscreen was marketed as "all natural" and rejected California Naturel's contention that the disclaimer transformed that message.

"The sunscreen itself continues to state it is 'all natural,'" Chairwoman Edith Ramirez wrote for the Commission. "And California Naturel continues to prominently display the 'all natural' language … on its website. Adding a disclaimer to the bottom of the webpage that is well removed from the proximity to the 'all natural' claims—and, in fact, not visible at all without scrolling down—does not change the net impression conveyed to consumers that the product is 'all natural.'"

As the disclaimer appeared "well below" the website's "Add to Cart" button, consumers were invited to purchase the product before they even saw the disclosure, in contravention of the agency's "Dot Com Disclosures" guidelines.

The chairwoman maintained that her analysis was particularly applicable to the advertiser's claims prior to September 2016 when it added the disclosure, but remained on point even after the disclaimer was added. Commissioner Maureen Ohlhausen dissented on this point, arguing that the question of whether the later-added disclosure adequately qualified the claim was a genuinely disputed material fact and not appropriate for summary decision. But the majority disagreed, writing that "declining to address the disclaimer's sufficiency could create the misimpression that the disclaimer cures the deception."

California Naturel also pointed to its list of ingredients, which included dimethicone, but the list "does nothing to dispel the net impression that the sunscreen is 'all natural,'" the FTC said. "All of the ingredients are in the same font and font size, and nothing on the face of the list identifies dimethicone as a synthetic ingredient."

Even though a consumer could click on the word "dimethicone" to identify the ingredient as a "silicone-based polymer," this was insufficient, the agency added. Case law has established "that it is reasonable for a consumer to rely on express claims, and thus that they should not be required to search for and dig out information that contradicts what an advertisement expressly and prominently conveys," Ramirez wrote.

The FTC also found that the claims were false and misleading (based on the advertiser's admission that the formula contained eight percent synthetic ingredient) and that the "all natural" claims were express and therefore presumptively material, notwithstanding the fact that no regulatory definition specifies the percentage of natural ingredients required to qualify a product as "natural"—a point made by the advertiser—that "misses the mark," the agency said. "California Natural does not merely claim that its product is 'natural'; it expressly asserts that its sunscreen is 'all natural' and that it 'uses only the purest, most luxurious and effective ingredients found in nature.' By California Naturel's own admission, that is not true."

As a remedy, the Commission prohibited the advertiser from making the kinds of misrepresentations alleged in the complaint. Specifically, California Naturel is banned from misrepresenting: "(a) whether a product is all natural or 100% natural; (b) the extent to which a product contains any natural or synthetic ingredient; (c) the ingredients or composition of a product; and (d) the product's environmental or health benefits. To ensure that representations about ingredients are not misleading, California Naturel must have competent and reliable evidence supporting its claims about the content and ingredients of the product."

To read the final order and opinion in In the Matter of California Naturel, Inc., click here.

Why it matters: Advertisers are on notice that the FTC is taking a hard look at "all natural" claims. The case against California Naturel was one of five actions taken against the makers of personal care products over "100% natural" or "all natural" claims despite the presence of synthetic ingredients. The takeaway for advertisers? "'All natural' or '100 percent natural' means just that—no artificial ingredients or chemicals," Jessica Rich, Director of the FTC's Bureau of Consumer Protection, said in a statement. "Companies should take a lesson from these cases."

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CARU: "Selfie Mic" Ads Give Kids the Wrong Impression

The makers of the "Selfie Mic" should discontinue advertising claims that imply children under the age of 13 can use all the features of the toy associated with the age-gated app, the Children's Advertising Review Unit (CARU) has recommended.

Television ads that aired during programming primarily directed to children under the age of 13 depicted tweens singing pop songs with the Selfie Mic. During the ad, an announcer stated: "It's easy! Just download the free Star Maker App, attach your smartphone and you are ready to rock"; "You can make your own real music video"; "You'll sound like a star with special audio effects like Auto-Tune and cool filters"; "Choose from thousands of songs made famous by Taylor Swift, Justin Bieber, Drake, Ariana Grande and many more"; "Then share with your friends with just one tap"; and "Selfie Mic works with a free downloadable Starmaker App and comes with everything you see here. Plus you'll get Starmaker bonus tokens."

The commercial ended with a child texting a friend her music video with the words "Check it out!!!" on the screen.

But users under the age of 13 may not be able to take advantage of all of the features associated with the age-gated Starmaker app discussed in the advertisement, CARU said, such as saving and sharing videos and downloading free songs.

To save and share videos, users are required to provide personally identifiable information as part of the app registration process. In order to comply with the Children's Online Privacy Protection Act (COPPA) and prevent children under the age of 13 from sharing such information, the Starmaker app contains an age gate. As a result, children under the age of 13 can interact with the app and the Selfie Mic—but in a limited way, CARU explained, while the ad "concentrated on and built up excitement for" the features younger children could not access.

The self-regulatory body recommended that Moose Toys stop airing the television commercial during children's programming or modify the ad to accurately depict how children under the age of 13 can realistically use the product.

Why it matters: Ironically, the advertiser's compliance with COPPA triggered CARU's concern about the message conveyed by the advertisement. Moose Toys properly age-gated the Starmaker app for the Selfie Mic, but then left children under the age of 13 with the impression that they could enjoy all the features of the product. In its advertiser's statement, Moose Toys said it would comply with CARU's recommendations.

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FTC Pressure Mounts, App Maker Settles

The marketers behind an app designed to measure blood pressure reached a deal with the Federal Trade Commission over allegedly deceptive claims about the app's accuracy.

Aura Labs, along with founder and co-owner Ryan Archdeacon, were charged with touting that the Instant Blood Pressure app could replace around-the-arm cuffs and was as accurate as a traditional blood pressure cuff when, in reality, the app (which had users put their right index finger on a smartphone camera lens and hold the phone over their heart) was "significantly less accurate." As studies demonstrated "there were clinically and statistically significant deviations between the App's measurements and those from a traditional blood pressure cuff," according to the FTC's complaint. Thus, Aura's claims were false or unsubstantiated.

Sold at Google Play and Apple's App Store for between $3.99 and $4.99, the app generated more than $600,000 in sales over a one-year period. As an additional violation of Section 5 of the Federal Trade Commission Act, the agency said Archdeacon posted a positive review of the app and provided it with five-star ratings in the app stores without disclosing his connection to the company.

According to the FTC, the review—posted by "ARCHIE1986"—read: "This app is a breakthrough for blood pressure monitoring. There are some kinks to work out and you do need to pay close attention to the direction in order to get a successful measurement but all-in-all it's a breakthrough product. For those having connection problems, consider trying again. I have experienced a similar issue. It is also great that the developer is committed to continual improvements. This is a great start!!!"

Pursuant to the stipulated federal court order, the defendants are prohibited from making the deceptive claims alleged in the complaint and any other claims about the health benefits of any product or device without the scientific evidence to support the claims. The defendants must also disclose any material connections between Aura and the individuals who endorse its products.

A judgment of almost $600,000 was suspended upon the defendants' inability to pay.

To read the complaint and order in FTC v. Aura Labs, Inc., click here.

Why it matters: "While the Commission encourages the development of new technologies, health-related claims should not go beyond the scientific evidence available to support them," Jessica Rich, Director of the FTC's Bureau of Consumer Protection, said about the case. "For someone with high blood pressure who relies on accurate readings, this deception can actually be hazardous."

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