Dear “Super Lawyers”

Would you please remove me from your list?  While it is factually correct that I am a lawyer, the word “Super,” as applied to me is a stretch.  Other than passing the Massachusetts Bar Exam and working on a few cases here and there, I have never done anything deserving of the lofty appellations “Rising Star” or “Super Lawyer.”

If I develop any of the abilities listed below, let’s reconsider:

  • Super Strength
  • Super Speed
  • Enhanced Leaping

Sincerely,

Preston W. Leonard

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Celebrity Endorsements and Their Potential for False Advertising

American companies have long relied up on celebrity endorsements to sell consumer goods. An example is the 1942 Kool-Aid advertisement below:

Advertising Hollywood Screen Star Patricia Morison Says:

‘Kool-Aid is such a convenient beverage, so easy to make.  Everyone enjoys its delightful flavor!’

While this statement by a movie star to help sell a product was not “false advertising” in a legal sense, it is an interesting example of a celebrity endorsement.

The ad’s representation that “Kool-Aid is flavorful and satisfying,” is also not false advertising.

However, the statement “Kool-Aid’s manufacturing facilities are contributing to the nutritional requirements of the armed-forces,” may have been misleading or literally false. 

The 1960 Camel cigarette advertisement below capitalizes on a football star’s fame and popularity to sell a carcinogenic product that interferes with lung function.

“For rich flavor, my choice is Camels.”

Dick Nolan DEFENSIVE BACKFIELD STAR OF THE N.Y. GIANTS

Some advertisements simply associate a product with the name and face of a famous person, which is in itself a form of product endorsement. For example, this 2021 Kellogg’s Frosted Flakes advertisement (on the product itself) has a large photograph of basketball player Shaquille O’Neal.  The cereal box says “SHAQ HAS JOINED TONY’S TEAM TO HELP SAVE SCHOOL SPORTS.  Enter for a chance to win a trip to the Celebrity Crunch Classic and you could see them both in action!”

Shaquille O’Neal’s status in the sports world means his product endorsements carry extra weight. Shaq is not just a famous basketball player – he is one of the greatest NBA players of all time, and “probably the most dominant physical force in league history.” I don’t expect any false advertising class actions about this advertisement involving Shaquille O’Neil – or Tony the Tiger for that matter (although the latter has been involved in decades of litigation over trademark controversies).

Coming Soon:

Football’s “Golden Boy” Tom Brady is “arguably the best quarterback to ever play in the NFL.”

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False Advertising and “Puffing”

 
False advertising exists on product packaging, and any other form of advertising where the seller makes claims that “do not simply magnify in opinion the advantages the product has but invents advantages and falsely asserts their existence.” It is at that point that the seller “transcends the limits of ‘puffing’ and engages in false representations and pretenses.” United States v. New South Farm, 241 U.S. 64, 74 (1916).  The 1942 Camel cigarette advertisement below is an example of an ad that does not employ false advertising.  Every statement in the ad is either factually accurate, or mere “puffing.”
 
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The Lucky Strike cigarette advertisement below is an example of a celebrity endorsement:

“Years ago, as an ambitious young actor, I was impressed how well my throat liked Luckies and how well they suited my idea of a perfect cigarette. That impression still stands. In my recent tour of ‘Hamlet’, with its many performances each week and the attendant tax on my throat, I have been convinced anew that this light smoke is both delightful to my taste and the ‘top’ cigarette for an actor’s throat.”

– Leslie Howard
Lucky Strike

This 1937 American Tobacco Company ad goes on with a persuasive argument for choosing Lucky Strikes: “Notice how many professional men and women- lawyers, doctors, statesmen, etc., smoke Luckies. See how many leading artists of radio, stage, screen, and opera, prefer them. Naturally the voices of these artists are all-important to them. That’s why they want a light smoke. You can have this throat protection too. The protection of a light smoke free of certain harsh irritants expelled by the exclusive “Toasting” process.”

False or misleading statements/phrases in this ad:

  • “throat protection”
  • “smoke free of certain harsh irritants expelled,” by a “Toasting”[sic] process.”

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Cellulite Skin Cream and False Advertising

“‘Cellulite’ is a word first coined in France sometime around 1920 to describe the dimpled, uneven appearance of skin caused by the distribution of subcutaneous fat, particularly around the hips, thighs, and posterior of women. Primed by unrelenting pressure to appear youthful and attractive, women have been presented with “anti-cellulite” products in recent years.

Marketers of anti-cellulite products promote the false idea that the normal human imperfection of cellulite can be fixed by applying consumer goods.

For example, one in-store display claims, “You’re only 2 weeks from a firmer, smoother body.”Body Slim Ad

Is the premise that there are slimming or cellulite-banishing effects available through the application of any cream, ointment, supported by credible scientific evidence?

There is a long line of peer-reviewed scholarly articles, and credible medical opinions revealing the ineffective and useless nature of anti-cellulite creams.

Molly Wanner, MD, MBA, and Mathew Avram, MD, JD, both of Massachusetts General Hospital and Harvard Medical School, after carefully studying cellulite, its causes, and attempts at stopping it, have published their conclusion that cellulite is a normal condition affecting virtually all women, for which there is no effective remedy to be found on the shelves of a drug store:

“Cellulite is the characteristic, nonpathologic appearance of dimpled, ‘cottage cheese-like’ skin surface change typically seen in women on the thighs and buttocks. It is commonly seen on the abdomen, breasts, and arms. Given that the occurrence of cellulite is nearly universal in post-pubertal females, it is thought of as a female secondary sex characteristic. Nevertheless, it can be a distressing condition and patients spend billions of dollars on treatments that are largely ineffective.”[1]

The Scientific Community’s Rejection of Anti-Cellulite Claims

According to the first scholarly paper written on the topic of cellulite, “[I]t is an important obligation of physicians to teach the fact that so-called cellulite is not a disease, but is the result of the sex-typical structure of the skin of women and a natural consequence of aging,” and “there is up to now no other cosmetic or medical (short of surgical) treatment to improve so-called cellulite, certainly none at all to cause complete disappearance of it.” Nürnberger, F. and Müller, G. “So-Called Cellulite: An Invented Disease.”   The Journal of Dermatologic Surgery and Oncology (1978) 4:3 221-9.

Medical practitioners still soundly reject the notion that any topical product can effectively treat the condition of cellulite:

  • “At this point, there is no outstanding treatment for cellulite.” (Dr. Molly Wanner, dermatology instructor at Harvard Medical School. See St. Louis, Catherine. “Treating Cellulite? It’s Still There.”[2] The New York Times (June 24, 2009).   See also Wanner, Molly. “An evidence-based review of existing cellulite-reduction treatments.” Journal of Drugs in Dermatology. (2008) April 7(4):341-5.
  • “It’s a Madison Avenue term. It’s a normal variant of fat that shows as dimples. There’s no way a cream or pounding will change that fat.” (Dr. Samuel J. Stegman, associate clinical professor of dermatology at the University of California at San Francisco). See Wells, Linda. “Beauty; Battle of the Bulge.”[3] The New York Times, July 3, 1988.
  • “It’s not a happy situation for women who want to get rid of it because we don’t know how to treat it.” (Dr. Arthur Shipp, clinical professor of plastic surgery at Albert Einstein College of Medicine in New York who conducted an extensive cellulite study. See Carr, Amy. “Erasing Cellulite.”[4] Daily Herald (Arlington Heights) June 7, 1998.
  • “[A]ccording to 27 years of medical literature recently reviewed in The Journal of Cosmetic and Laser Therapy, scientific proof that creams make a real, lasting difference does not exist. ‘There is no evidence to show that any topical medications improve cellulite.’” (Dr. Mathew Avram, Harvard Medical School). See Siegel, Jessica. “Fat Chance.”[5] The New York Times, August 15, 2005.
  • “According to [UCLA’s David Geffen School of Medicine Dr. Jenny] Kim, no studies have convincingly shown that cellulite creams do any good on actual bodies.” Woolston, Chris. “Little proof of cellulite cream success.”[6] Los Angeles Times, November 3, 2008.
  • “I don’t think the evidence is there to recommend spending money on a cellulite cream,” says Dr. Molly Wanner, a dermatologist at Massachusetts General Hospital in Boston and an instructor at Harvard Medical School. Id.

In January 2014, The Federal Trade Commission announced a settlement enjoining a cosmetics company from making deceptive cellulite cream claims.   See “FTC Approves Final Consent Settling Charges that L’Occitane, Inc. Misled Consumers to Believe that Creams Could Slim Their Bodies.[7] In that case, the FTC alleged that L’Occitane violated the Federal Trade Commission Act because it advertised a cream that “helps to visibly reduce the appearance of cellulite,” and “reduces cellulite.” See Complaint, In re L’Occitane, Inc. a corporation, FTC file No. 122 3115[8].

[1] Wanner M, Avram M. “An evidence-based assessment of treatments for cellulite.” J Drugs Dermatol. 2008 Apr;7(4):341-5.

[2] http://www.nytimes.com/2009/06/25/fashion/25skinintro.html?_r=0, last accessed November 19, 2015.

[3] http://www.nytimes.com/1988/07/03/magazine/beauty-battle-of-the-bulge.html, last accessed November 19, 2015.

[4] https://www.highbeam.com/doc/1G1-68783688.html, last accessed November 19, 2015.

[5] http://www.nytimes.com/2005/08/15/opinion/fat-chance.html, last accessed 11/19/15.

[6] http://www.latimes.com/health/la-he-skeptic3-2008nov03-story.html, last accessed November 19, 2015.

[7] https://www.ftc.gov/news-events/press-releases/2014/04/ftc-approves-final-consent-settling-charges-loccitane-inc-misled, last accessed November 19, 2015

[8] https://www.ftc.gov/system/files/documents/cases/140408loccitanecmpt.pdf, last accessed November 19, 2015

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Typographical Erra

Quincy District Court  (Basement)

Year: 2012

1 Comment

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