Health

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Mandatory Arbitration Requirement Found Hidden Inside Nutrition Product Package

Vital ProteinsCompanies generally do not like to be sued by consumers particularly in class action lawsuits. So, many of them have incorporated mandatory arbitration clauses into their contracts, or sometimes buried in the terms and conditions section of their websites.

Consumer World reader Dave L. recently wrote to us pointing out a most novel way that one company was attempting to foist a mandatory arbitration requirement onto its customers.

I recently bought my wife some Vital Proteins Collagen Peptides protein powder dietary supplement at BJ’s (Stoneham, Mass.) and noticed the packaging had changed. … After she opened the new outer container, she noticed fine print on a seal that said she was bound by terms and conditions …

*MOUSE PRINT:

Vital Proteins inner lid

There, under the new paper cap, is a disclosure that says:

READ THIS: By opening and using this product, you agree to be bound by our Terms and Conditions, fully set forth at VitalProteins.com/tc, which includes a mandatory arbitration agreement. If you do not agree to be bound, please return this product immediately.

What chutzpah of this company ignoring basic contract law that requires disclosure and agreement BEFORE a contract is entered into! You have already bought the product and destroyed the new paper package’s top, and you are then supposed to return the product if you don’t agree to these terms? As our consumer wrote, “this is nuts.”

In addition, on the company’s website, part of its terms and conditions, seeks to absolve itself of errors, including incorrect prices and inaccurate product descriptions.

*MOUSE PRINT:

V. Availability, errors and inaccuracies

… The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service.

Why is this company, now owned by Nestlé Health Science, doing this? It seems they have been subject to various legal actions before by a competitor and a public interest health group, and they had a product recall in 2023.

We asked Nestlé twice to comment on why they thought they could rope purchasers into a mandatory arbitration agreement that was only disclosed to them after they bought the item at a retail store. They did not respond.

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Robitussin Puts Non-Drowsy Lawsuit to Bed

In 2022, two different consumers sued the makers of Robitussin alleging that package claims of the products being non-drowsy were false and misleading. (See complaint.)

In particular, the suits said that one of the active ingredients in these cough suppressants, dextromethorphan (DXM), was actually known to cause drowsiness. Further, the complaints alleged that the “drug facts” disclosure on the back of the boxes did not warn about possible drowsiness.

*MOUSE PRINT:

Robitussin DM

The plaintiffs also cited various medical studies supporting the fact that DXM could make one sleepy, and pointed out that the Federal Aviation Administration advised pilots not to fly if they have taken it.

In 2023, the case was decided in favor of the manufacturer on the theory that the state law consumer violations cited were pre-empted by the federal Food, Drug, and Cosmetic Act governing drug products like this. The consumers appealed.

Despite that, the parties negotiated with each other since the court decision, and came to a settlement of the claims for $4.5-million. The company has agreed to discontinue the non-drowsy claims. Purchasers as far back as 2016 may be entitled to between $1.50 and $4.75 per claim. More details will be available after a judge signs off on the agreement.

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Can Dove Deodorant Grow Back Lost Skin?

Since April, Dove has been running a deodorant commercial claiming that when women shave their armpits, one third of what they remove is skin. But if they use new Dove deodorant, it helps repair it.

The company posed a problem — lost skin, and proposed a solution — spray it with Dove. “Shave it? Dove it,” the ad says repeatedly.

The commercial concludes by saying “replenish your skin after every shave.” That almost sounds like there is human skin in each can because “replenish” means to fill back up or build back up.

*MOUSE PRINT:

After the announcer says one-third of what is lost is skin and “Dove helps repair it,” this one-second fine print footnote comes on the screen.

repair barrier disclaimer

That is the only time the company says in the ad that what they are really talking about is repairing the skin’s barrier.

The website for Dove Cool Essentials explains a bit further:

Did you know that when you shave, 1/3 of what you remove is skin? That’s why our Advanced Care Cool Essentials Antiperspirant Dry Spray is infused with Pro-Ceramide Technology, which helps strengthen your skin’s barrier by helping boost ceramide levels (that naturally deplete when you shave).

That is apparently a true statement. The sunflower oil in the spray’s ingredients could perform a protective function if it was applied in sufficient quantity to help the skin stay moist and may help protect against infections. But that is not the same as suggesting that the ceramides in the deodorant can repair lost skin or build it back up — the very problem the commercial seems to be alerting viewers about.

We asked a dermatologist if this product could possibly repair lost skin or replenish it. She said she was not aware of any evidence-based science to support those claims. A second dermatologist said that ceramides are an ingredient in popular lotions and creams to add moisture to treat dry skin, but he did not know if the company’s claims were true or just theoretical.

So we asked Unilever, the manufacturer of Dove deodorant, if they had studies that demonstrate that use of this Dove deodorant can replenish lost skin. They did not reply to multiple inquiries.

As a result, we have asked the National Advertising Division of Better Business Bureau National Programs to open a case about this advertisement.