November 1, 2012

More Than Just Bed Bugs Keeping FTC Up at Night

Consumer Advertising Law Blog

The Federal Trade Commission (FTC) is set to litigate its deceptive advertising claims against Springtech, the marketers of Best Yet!, a cedar oil-based solution that claims to eliminate bed bug and head lice infestations.

On September 5, 2012, the FTC filed deceptive advertising charges against both Springtech 77376, LCC and RMB Group, LLC, makers of bed bug and lice treatments. What makes this case interesting is Springtech's decision to fight the charges. While RMB Group settled with the FTC, Springtech refused.

The FTC is making three deceptive advertising claims against Springtech: (i) a lack of substantiation claim, (ii) a false claim of government affiliation, and (iii) a false claim about an EPA recommendation. The FTC alleges that Springtech lacked adequate support prior to making claims that its cedar oil spray is a "contact killer" of bed bugs and is "far more effective than synthetic chemicals" at stopping and preventing bed bug infestations. The FTC also intends to pull the sheets over Springtech's claims that its products are "scientifically tested and proven" to be effective. According to the FTC, scientific studies do not prove that Springtech's products are effective.

Springtech also got under the FTC's skin by making allegedly false claims about its affiliation with the federal government. (In advertisements, Springtech claimed that its bug spray was "developed at the request of the USDA for our military," and has been "acknowledged by the USDA as the number one choice of bio-based pesticides.") One of the FTC's likely concerns here is that false claims of affiliation may mislead consumers about the product's quality, reliability, efficacy, or value, by falsely implying that the products have the aura of federal government legitimacy.

Lastly, the FTC is losing sleep over Springtech's claim that "the EPA recently warned victims fighting bed bugs to 'avoid chemical solutions altogether,'" which the FTC maintains is simply not true. Rather, according to the FTC, the EPA recommends a combination of techniques to fight bed bugs, including prevention, monitoring, and limited use of chemical pesticides. Although not alleged in the FTC's complaint, this type of claim could also raise concerns about overstating the safety or environmental benefits of the product.

We will be sure to keep our eyes open to see how this case progresses. It will be interesting to learn the arguments Springtech makes in support of its claims, and what effect those arguments could have on future substantiation and government affiliation claims.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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