February 6, 2013

"Gym, Tan, Laundry," Lawsuit?

Consumer Advertising Law Blog,

Although the televised adventures of Snooki, Jwoww, The Situation, and many others, came to a close in December, following the end of the sixth and final season of MTV's "Jersey Shore," their spirit lives on in the mantra "gym, tan, laundry" ("GTL") and three spinoffs (as of this writing). But on January 17, it also lives on in a complaint filed with the FTC.

The complaint, filed by the Skin Cancer Foundation, urges the FTC to investigate the conduct of MTV in encouraging and promoting "cancer causing behavior without a warning of the risk." Specifically, the Foundation alleges that MTV's youth-oriented show portrays "excessive tanning . . . as a socially enhancing, safe and beneficial activity while omitting its dangerous, cancer causing effects . . . ." In its marketing of the "Jersey Shore," and the related tanning or GTL merchandise and promotions, MTV allegedly failed to warn viewers properly of the risks and harms associated with tanning, including cancer. Instead, the Foundation claims MTV refused to provide such warnings following a formal request by the Foundation. Although MTV does not operate tanning salons, the Foundation asserts that MTV's failure to provide such warnings increases the risk of cancer to the public, particularly the younger viewers of the "Jersey Shore," because MTV "portray[s] tanning as beneficial and safe, in violation of Section 5 of the Federal Trade Commission Act." The Foundation's complaint alleges this practice is deceptive.

In asserting its Section 5 claim, the Foundation relied on the FTC's Policy Statement on Deception, which provides, in short, that advertisers should not convey through admission or omission an inaccurate impression of the safety, benefits or risks of a product, service or procedure. The Foundation also drew parallels between the MTV's portrayal of tanning and the portrayal of alcohol and tobacco in movies and on television prior to the FTC's recommendation of advertising limitations for alcohol and the prohibition of tobacco advertising on television.

The complaint also cites an earlier FTC enforcement actions related to tanning. A little over three years ago, as this blog reported, the FTC settled claims against the Indoor Tanning Association, which conducted a national advertising campaign touting the lack of increased cancer risk, the health benefits, and relative safety of indoor tanning compared to outdoor tanning. That consent decree required the Association to cease making these claims and to warn consumers that "exposure to ultraviolet radiation may increase the likelihood of developing skin cancer and can cause serious eye injury."

The Foundation urges the FTC to require MTV to provide a clear and conspicuous warning of the risks associated with tanning on all "Jersey Shore" broadcasts, websites, advertisements, tanning-related games, and GTL merchandise. MTV has responded that it "regularly engages its audience on a whole host of youth related issues, including sexual health, mental health, dating abuse, skin cancer and others. . . . Ultimately, we've seen time and time again that our audiences can be trusted to understand the difference between entertainment and responsible and safe behavior to act accordingly."

It is not clear at this point whether the FTC will act. MTV's business may have expanded far beyond broadcasting music videos, but the lack of MTV Tanning Salons may be enough to stave off FTC action. We will be sure to let readers know about any FTC action taken on this complaint. For more information about the Jersey Shore, please consult your local celebrity gossip site.

© Arnold & Porter Kaye Scholer LLP 2013 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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