Jumping into False Advertising!

Hello! This post is meant as the intro to a series I’d like to get running (time permitting), to explore false advertising law, recent cases, and interesting topics. I admit, I’m doing this in large part out of my own interest in learning more about the topics — I think teaching is the best way to *really* learn a subject—but, I think this is a really interesting field of law, and maybe you will too! (and if you’ve got questions or topics you’re interested in, please do let me know!).

To start with, Washington and Oregon courts recently (or, not so recently anymore) came down on opposite sides of identical false advertising lawsuits brought against the popular energy drink 5-Hour Energy, and offers an accessible first look into false advertising.

Each case centered around allegations that 5-hour Energy ads mislead consumers into believing that doctor’s endorsed the drink, that the drink offers better energy benefits than coffee, and that it is the unique combination of ingredients that creates such benefit.

The Oregon case is much less interesting, with the judge ruling in favor of 5-Hour Energy, that its claims were not misleading or deceptive. Instead, lets focus on the Washington case, looking for early take-aways regarding what constitutes false advertising.

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The Washington Case

The Washington case came out of investigators looking into 5-Hour Energy’s claims that it was mix of vitamins and amino acids, not the caffeine, that were the key energy-boosting ingredients of their sugar-free drink.

The State noted that a “Ten Reasons To Trust” list put out by 5-Hour Energy listed caffeine ninth out of ten key ingredients, only above “Other Ingredients”. TV advertisements also highlighted the fruits, vegetables, and vitamins in the drink, and that it was because these “key ingredients”… “work in concert [with the caffeine] to provide a feeling of alertness and energy that lasts for hours.” Opinion at 14.

The State claimed 5-Hour Energy was being deceptive regarding the importance of its non-caffeine “key ingredients”, and attempting to gloss-over the caffeine in the drink by marketing it as an alternative to caffeine and sugar-based energy drinks. Id. at 11.

The Washington court did not agree the company was deceptive regarding the caffeine contents of the drink. The court cited substantial nutritional studies backing the claims by 5-Hour Energy, and there was expert testimony that the studies themselves were credible. Id. at 50.

The court did, however, take issue with three advertising statements made by 5-Hour Energy: First, the claim that the energy boost from 5-Hour Energy was greater than coffee; second, claims regarding the energy boost from the decaffeinated version of the drink; and third, that the drink was “doctor recommended.” Id. at 3–4, 13–20.

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Three Claims by 5-Hour Energy

Ads claimed that 5-Hour Energy “would provide energy that would last longer than” coffee, with some ads claiming a better energy boost than three or four cups. Id. at 50. There were a number of studies conducted before and after the product’s release, each of which the court reviewed to determine whether they supported the energy-boosting claims by 5-Hour Energy. According to the court, “the studies do not clearly establish that 5-Hour energy vitamins and nutrients work synergistically to make these benefits last longer than they would last with caffeine alone.” Id. at 51. There was some evidence that the caffeine and other key ingredients did provide an energy boost, but not enough to support the specific benefit 5-Hour Energy boasted. Id. Therefore, the court held that the statements regarding the energy boost were deceptive.

Next, the court looked into the advertising for the decaffeinated version. Ads claimed that even the decaf version would “generate energy and alertness that ‘lasts for hours.’” Id. at 54. Again, there were scientific studies done on the energy-boosting effects of the decaffeinated version, but in the court’s opinion the results of the studies failed to support 5-Hour Energy’s claims. Id. at 55.

Finally, the court addressed the “Ask Your Doctor” campaign, a series of advertisements claiming that doctors would recommend 5-Hour Energy to patients. The ads were based on surveys of doctors, asking the doctors if they would recommend the drink to patients. Id. at 56. However, there was expert testimony arguing that the surveys were biased and leading, and thus couldn’t substantiate the claims made by 5-Hour Energy. Id. at 56–57. The court agreed. The survey didn’t ask whether the doctors thought the drink was healthy or safe, as the ads suggested. Instead, the doctors were told that the drink was low fat, low calorie, low sodium, and sugar-free, and then asked if they would recommend the drink for healthy patients who already used energy supplements. Id. at 56.

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Take-Aways

What do these statements — that the energy boost from 5-Hour Energy is better than coffee, the energy benefits of the decaffeinated version, and the doctor’s “recommendations” — have in common? They are all boastful or exaggerated statements, objective and verifiable, regarding the quality of the product.

Boasting and exaggerating falls right on the line between false advertising and common “puffery” — promotional statements that are understood to be exaggerations the consumer should not take literally, subjective, boastful opinions of the seller, and general claims of superiority too vague to be relied on. 4 J. Thomas McCarthy, McCarthy on Trademark and Unfair Competition § 27.38 (4th ed. 1996).

The question to ask of these boastful claims is whether they can be objectively proven true or false, and whether they are too vague for consumers to take them seriously. See Abhishek K. Gurnani and Ashish R. Talati, The World’s Most Trusted Article on Puffery”: Non-Actionable Puffery or Misleading?.

Here, each of the statements is verifiable, they are objective, and each are concrete enough that the consumer could take them seriously. Therefore, when they turn out to be false or misleading, that’s illegal false advertising.

In contrast, common examples of puffery are statements like “World’s best pizza!” or “The most comfortable socks imaginable.” Statements like this are vague and not reasonably verifiable. Moreover, they are the kind of commercial exaggeration that consumers are accustomed to and expect, and that consumers are unlikely to take seriously. Unless you’re from the North Pole, in which case puffery could very well trick you.

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Coming Up

So, this 5-Hour Energy case is a nice jumping-off point into the law of false advertising, and into the distinction between puffery and false advertising.

Hopefully, you’re still here, and maybe your interest is piqued. If so, stick around, share, ask questions. In upcoming posts we’ll build off this simple intro, moving on to break down the elements of a false advertising claim at the state and federal levels, and use a wonderful case between Pizza Hut and Papa Johns’ to explore the core concept of puffery some more.