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October 20, 2014

What’s Really in That Pet Food?

Filed under: Food/Groceries,Health,Retail — Edgar (aka MrConsumer) @ 5:59 am

 A professor at Chapman University in Calfornia just completed a study of the actual contents of dog and cat food with some shocking results.

Of the 52 products tested, only 31 were labeled correctly. Of the about 20 that were potentially mislabeled, seven were cat food and 13 were dog food. What kind of discrepancies did the researchers find?

*MOUSE PRINT:

Sixteen contained a certain kind of meat that was not specified on the label. In three cases, one or two meats were substituted for the meats listed in the ingredients. Pork was the usual addition. On the bright side, no horse meat was found.

The study did not specify the brand names of the affected products (and our request of the author to provide specifics was denied): “It was not our intention to single out pet food brands, but rather to investigate the issue as a whole. Therefore, we will not be releasing the names of the brands or specific products that were tested in this study.”

A pet advocate who has written extensively on this subject at TruthAboutPetFood.com paid for a copy of the study and posted examples of some of its findings:

Sample number P017 – Cat Food (wet). Meat ingredients listed on the cat food label: “Liver (turkey), Turkey, Meat by-product, Chicken”. Testing found: “Chicken and Goat”. This pet food was a ‘turkey’ cat food – but testing found no turkey.

Sample number P019 – Dog Food (dry). Meat ingredients listed on the dog food label: “Chicken, Chicken meal, Beef fat”. Testing found: “Beef, Lamb, Chicken, Turkey, and Pork”. This chicken and beef fat dog food included 3 other animal species that were not listed on the label (lamb, turkey and pork).

We unfortunately have to conclude that in too many cases, the ingredients listing on pet foods is merely a suggested list of what might be in the bag or can.

• • •

October 13, 2014

What Would You Give Up in Exchange for Free Wi-Fi?

Filed under: Internet — Edgar (aka MrConsumer) @ 5:30 am

 When you are offered free Wi-Fi in a public area, you usually have to agree to some terms and conditions statement. Most people don’t read them, and simply scroll past the fine print to the “ok” or “I agree” button.

Some folks in London a few months ago were subjected to a little experiment where an unusual requirement was tucked into the fine print.

*MOUSE PRINT:

‘in return for free wi-fi access the recipient agrees to assign their first born child to us for the duration of eternity.’

Did anyone fall for it? Yep. Half a dozen people clicked the “I agree” button.

The Finnish company that organized the research said it will be returning the children to their rightful parents.

For more details, here is the experimenters’ report summary and full report.

• • •

October 6, 2014

CVS to Pay $225K for Misleading Packaging

Filed under: Food/Groceries,Health,Retail — Edgar (aka MrConsumer) @ 5:57 am

  Some people call it over-packaging, slack-fill, or deceptive packaging. No matter what the name, it describes a product’s packaging that is deliberately designed to make the contents seem greater than they really are.

Last week, district attorneys from four California counties entered into a settlement agreement with CVS after they charged that the pharmacy chain misled consumers by misrepresenting product sizes or quantity. CVS was said to have used packaging that was “oversized and [with] non-functional slack-fill and/or false sidewalls and/or false bottoms. The company agreed to pay over $225,000 to settle these charges.

*MOUSE PRINT:

cvsfalsepackage

CVS issued a statement to KFSN, the television station that first broke the story:

“CVS/pharmacy has entered into an agreement with District Attorneys in a few California counties to resolve allegations concerning the packaging size of certain CVS Brand products. CVS/pharmacy is committed to ensuring that its product packaging is sufficient in size to accommodate pertinent information about the product. CVS Brand products, including packaging, are generally designed to be similar to the national brand equivalents. While manufacturers generally choose the container size, CVS/pharmacy has agreed to redesign the packaging of certain CVS Brand items.”

We told you about CVS selling vitamins in oversized packages over a year ago. Using our patent-pending super-duper x-ray device (a flashlight) we determined that a bottle of CVS vitamin D softgels only occupied about 25% of the space in a five-inch high bottle:

*MOUSE PRINT:

CVS fill line

The current action against CVS focused on various store brand anti-wrinkle creams they sell:

     
  • Accelerated Wrinkle Repair Moisturizer, Day
     
  • Accelerated Wrinkle Repair Moisturizer, Night
     
  • Age Refine Eye Cream, 0.5 ounces
     
  • Age-Refine Day Cream, 2.5 ounces
     
  • Anti-Wrinkle And Firming Cream
     
  • Healthy Complexion Anti-Wrinkle Moisturizer Acne Treatment Cream, Clear Skin
     
  • Frizz-Defy Hair Serum
     
  • Moisturizing Face Cream Hair Remover
     
  • Preventin -AT 2 in 1 Dark Circle And Wrinkle Eye Treatment
     
  • Maximum Scalp Relief

The agreement allows CVS to continue manufacturing the products until January 1, and continue selling them for two years.

• • •

September 29, 2014

FTC Warns Sellers to Make Disclosures “Clear and Conspicuous”

Filed under: Internet,Retail — Edgar (aka MrConsumer) @ 5:08 am

 For the past two weeks MrConsumer has been ranting about retailers that don’t disclose key information in their ads in a “clear and conspicuous” manner. Last Tuesday, the FTC must have heard his yelling and screaming, and sent letters to over 60 companies warning them to clean up their ads. (We asked the FTC for a copy of the letter, but they refused.)

From their blog, here (only slightly excerpted) is the FTC’s message to companies about their obligation to make disclosures in their ads “clear and conspicuous.”

If the disclosure of information is necessary to prevent an ad from being deceptive, the disclosure has to be clear and conspicuous. That shouldn’t be news to any advertiser and certainly not to the 60+ companies – including 20 of the 100 biggest advertisers in the U.S. – that received warning letters as a part of the FTC’s Operation Full Disclosure. But whether your company heard from us or not, there are lessons to learn from our latest effort to ensure advertisers abide by time-honored legal principles.

Operation Full Disclosure included TV ads, print ads, ads in Spanish, and ads for a wide range of products and services – food, drugs, household items, consumer electronics, personal care products, weight loss products. It ran the gamut. And here’s what we found: A lot of ads included potentially misleading statements that advertisers tried to “fix” with problematic fine print.

Some ads quoted prices, but didn’t adequately disclose the strings that were attached. Others showed optional accessories, but didn’t adequately disclose that people had to buy extras to get the advertised benefit. Still others featured best-case-scenario consumer testimonials, but didn’t adequately disclose the results people could generally expect to achieve. We also spotted ads that included on-camera demonstrations without adequately disclosing material alterations. And that’s just for starters.

Here’s a practical way to think of it. If a disclosure is truly clear and conspicuous, consumers don’t have to hunt for it. It reaches out and grabs their attention. One mnemonic we use – The 4Ps – can help sharpen advertisers’ focus on four key considerations:

Prominence. Is the disclosure big enough for consumers to read easily? The fine-print “disclosure” and its TV cousin, the fleeting super, have long been the subjects of FTC law enforcement. Consumers shouldn’t have to scan an ad with a magnifying glass to pick up on material details of the deal. TV advertisers face the additional wild card of varying screen sizes. Regardless of whether a person is looking at the ad on a home theater system or a handheld device, small type can be easy to overlook. Furthermore, consumers shouldn’t have to be speed readers to grasp the message. FTC cases have challenged supers that flashed for just a brief period, lines of fine print on a single screen, and hard-to-read sentences over multiple screens. Consider contrast, too. White text on a light or variegated background isn’t likely to be noticed. Nor will a fine-print statement that has to compete with a dynamic and distracting image.

Presentation. Is the disclosure worded in a way that consumers can easily understand? Using legalese or technical terminology reduces the likelihood that consumers will get the message. Burying important information in a dense block of text is another common tactic that signals “don’t read me.” In one FTC settlement, for example, material information about the terms of the transaction appeared after an advertiser’s long litany of trademark information. In another case, a company used an intricately embellished all-caps font. That may be fine for the logo of a heavy metal band, but it’s not a presentation designed to convey critical information to consumers.

Placement. Geography matters. Is the disclosure where consumers are likely to look? An FTC settlement challenged as ineffective a key disclosure that ran down the side of a print ad perpendicular to the main text. Another case dealt with information conveyed in small type in the upper left corner of a full-page newspaper ad. And given all the talk about footnotes, the bottom of the page or screen isn’t a place most consumers will look.

Proximity. Is the disclosure close to the claim it modifies? Tiny type aside, another problem with footnotes is their distance from the prominent headline or splashy text designed to draw the consumer in. If you need to include key qualifications or conditions, remember this maxim: What the headline giveth, the footnote cannot taketh away. And don’t think an asterisk will always solve the problem. There’s a reason it’s called an aste-risk.

Now for the nitty-gritty. So just how big does a disclosure have to be? 4 point, 8 point, 12 point? What’s better: Times New Roman? Helvetica? How many seconds does it have to be on the screen? We get those questions all the time. But there are three reasons why advertisers who focus on the details may be missing the big picture.

“Clear and conspicuous” is a performance standard, not a font size. A disclosure is clear and conspicuous if consumers notice it, read it, and understand it. Do you really want the FTC staff dictating the specifics of your ad campaign? We didn’t think so. Aside from a few rules that mandate detailed disclosure standards, the “clear and conspicuous” ball is in the advertiser’s court. As long as consumers looking at the ad come away with an accurate understanding, companies have substantial leeway in how they communicate their marketing message. That’s why we think it would be a mistake to impose a one-size-fits-all approach.

Who knows better than advertisers how to convey information clearly and conspicuously? The “clear and conspicuous” standard allows advertisers to use their limitless creativity to integrate important information into the overall campaign. Even so, we often hear them say “But we don’t know how to make a disclosure clear and conspicuous.” Our response: Really? Really? Advertisers’ stock in trade is the ability to use the tools at their fingertips – text, sound, visuals, contrast, or color, to name just a few – to convey information effectively. One practical observation: Consider looking at it from another perspective. How would you send the message if you really wanted to, rather than because you think you have to? Approaching the disclosure as a key piece of information you want to convey may make it easier to ensure it’s clear and conspicuous.

When in doubt, rethink your ad claim. If you find yourself struggling with how to craft an effective disclosure, why not take a step back and consider what the need for a disclosure may be telling you. Perhaps it’s pointing to a potential for underlying deception in your ad claim. Sometimes all it takes is a slight wording change to make a disclosure unnecessary in the first place. And just think how refreshing consumers would find an ad free of fine print.

• • •

September 22, 2014

Don’t Give Companies a Free Pass for Tricky Ads

Filed under: Retail — Edgar (aka MrConsumer) @ 6:00 am

 MrConsumer has been a consumer advocate for over 35 years, and he is always astounded by the number of sneaky (and potentially illegal) practices that not only companies will use, but that shoppers will put up with, or even defend.

The comments on this blog are often a reflection of that attitude, and I find that troubling. It suggests that consumer advocates have not educated the public enough about what are acceptable practices and which ones cross the line.

Some consumers and too many businesses think that as long as they make a disclosure or disclaimer SOMEWHERE that that is all that is necessary.

The Staples story we brought you last week is a perfect example. It is not okay to run an advertisement for goods at a stated sale price but fail to mention IN THE AD that you have to buy other goods totaling $50 in order to get the goods at the advertised price. Too many commenters and the company itself thought it was enough just to let shoppers know before they checked out that there was a catch in the offer.

thumb dirve

That is not what the law says in Massachusetts (and probably in some other states). One of the primary principles in consumer law is the requirement of disclosing key facts upfront. What needs to be “clearly and conspicuously” disclosed? Anything that might mislead the prospective purchaser or induce him or her not to enter into the transaction.

“It is an unfair or deceptive act for a seller to fail to clearly and conspicuously disclose in any advertisement any material representation, the omission of which would have the tendency or capacity to mislead reasonable buyers or prospective buyers.”

“A disclosure is not clear and conspicuous if any material terms of the offer that affect the price of an item, impose conditions on acceptance of the offer, … are not disclosed in the advertisement itself…”

“Even though the true facts are subsequently made known to the buyer, the law is violated if the first contact … is secured by deception.”

Here are some examples of specific requirements of the law (at least in MA), and how they might apply to various advertising practices.

Example 1:

Under the law, important disclosures must be “clear and conspicuous.”

“Clear and conspicuous … means that the material representation being disclosed is of such size, color, contrast or audibility and is so presented as to be readily noticed and understood by a reasonable person to whom it is being disclosed.”

*MOUSE PRINT:

Proactiv

Is it clearly disclosed that by ordering ProActiv for $19.95 that you will also be signing up for regular monthly deliveries of the product? Is the average TV viewer likely to have even noticed that small disclosure for the few seconds it was on the screen?

Example 2:

“Clear and Conspicuous, is not clear and conspicuous unless such material representation … appears in type which is a minimum of eight point type;”

*MOUSE PRINT:

fine print

Burying key information in a fine print footnote is frowned upon. The above footnoted disclosures (note: the type size above may appear larger on your computer screen than it actually is) are actually part of a single paragraph where each line is 20 inches long, spanning two pages in a multi-page circular. The type size is five point type, not the minimum of eight point type required assuming there is something important in this footnote that is required to be clearly and conspicuously disclosed. Few if any human beings can read straight across a densely packed 20-inch line of type, with about 90 words per line, line after line, to understand what is trying to be conveyed. This is a perfect example of the belief that as long as a disclosure is made, no matter how or where placed, that that is sufficient.

Example 3:

A disclaimer can’t be used to change the meaning of the original claim.

“It shall be an unfair or deceptive act or practice for a seller to use a disclosure set apart from the primary claim to which it refers, such as by use of an asterisked footnote, if such disclosure imparts a meaning that contradicts or materially alters the meaning of the term, statement or claim to which it refers.”

*MOUSE PRINT:

entire store 50%

You’re across the street from this store and you see that everything in the store is half price. But as you walk closer, you see the disclaimer that certain items are excluded. Did you lose anything other than a few seconds, no. But stores can’t try to lure you in with a false claim, even if the truth is made known in an asterisked disclosure. The sale claim should have been worded to be true on its face.

The bottom line is this: you are entitled to full and clear disclosure upfront in advertising. Don’t settle for less. And don’t give advertisers a free pass when they fail to do this.

• • •
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