The Second District Court of Appeal, sitting here in Los Angeles, recently upheld a punitive award of $13.8 million against Philip Morris in a suit alleging the corporation “defraud[ed the plantiff] by deceptively marketing an addictive and lethal product in the years before the government required warning labels on cigarette packages.”

The jury awarded the plaintiff, the late Betty Bullock of Newport Beach, $850,000 in compensatory damages, making the punitive award just over 16 times that award, which Philip Morris maintains is “constitutionally excessive.” At the same time, Philip Morris reported over $6.3 billion in profits in 2010, making the punitive part of the award approximately 0.0460% of its yearly profits last year.

The Supreme Court ruled in 1996 that punitive damage awards, intended to punish Defendants and deter similar conduct in the future, may violate Due Process if the award proves “grossly excessive.” (BMW, Inc. v. Gore, 517 U.S. 559, 562) In order to make that determination, the Supreme Court considers several factors, including but not limited to, the reprehensibility of the Defendant’s conduct, the ratio to actual damages and the financial position of the defendant (Id. At 589-593).

Philip Morris is expected to appeal the decision to the California Supreme Court.
 

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New interesting articles and legal updates:

Product Liability Blog - FDA to Crack Down on Dietary Supplements, - Antibacterial Soap Can Hurt You, - Drop-Side Cribs Finally Banned.

Food & Drug Safety Blog - Dannon to Settle Complaint over Yogurt Ad, - Minnesota Man Awarded 1.7 Million in Levaquin Trial

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We've all seen the advertising - lose weight in a manner of weeks by just taking pills or supplements.  Weight loss pills and supplements are multi-million dollar industries, so many of us have gotten sucked into these campaigns in the hope they may work.  But, as the addage goes, if it's too good to be true, it probably is.  Most over the counter diet pills do not work, and the Federal Trade Commission even launched a campaign to stop these manufacturers from making "bogus claims." 

Leptopril is an example of a diet product that promises weight loss within a manner of weeks. In its advertising, Leptopril claims that it will cause weight loss by keeping excess sugar out of the blood and preventing fat formation.  Many bloggers have denounced these claims.  See here, here, and here.  Khorrami, Pollard & Abir, LLP filed suit against the makers of Leptopril on behalf of a consumer who took the product but did not experience any weight loss. 

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The Today Show recently launched an investigation of the popular product “Your Baby Can Read”, a system of flashcards, DVDs and pop-up books which boasts that it can teach children as young as two or three to read. The product, which retails for $100-$200, is available everywhere from the manufacturer’s own website to retail chains such as Best Buy and Bed, Bath & Beyond.

As part of its investigation, Today Show staff enlisted the help of child development experts from some of the nation’s most prestigious universities to assist in determining whether children who had used the product were actually able to read. The experts unanimously found that the babies or toddlers touted as being able to read had merely memorized the cue cards repetitively presented to them through the “program”. One expert, Dr. Maryanne Wolf, Direction of Neuroscience at Tufts University went so far as to call the product’s marketing “an extraordinary manipulation of facts”. The findings of Dr. Wolf and her fellow child development experts are premised on the scientific truth that while young children can recognize or memorize certain words with repetitive exposure, the brains of infants and toddlers are just not developed enough to “read” at the level that enticing television ads might suggest.

Dr. Robert Titzer, the product’s creator, maintains that the 10 experts enlisted by the Today Show are all simply “wrong” and insists that his product and its claims are backed up by scientific research. However, when asked by Today Show investigators to produce the scientific data, he provided only customer satisfaction surveys and general studies related to child learning.

While Dr. Titzer, whose PhD is in the unrelated field of human performance (motor skills), won't disclose specific details as to how much profit the product has generated, the company claims to have sold more than a million kits. Though the popularity of “Your Baby Can Read” is undisputed, the same cannot be said for its efficacy and we invite you to share with us your personal experiences with the product.
 

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 In a recent class action suit filed in California, Skechers, a shoe company headquartered in nearby Manhattan Beach, California, is facing allegations of misleading consumers with its Skechers Shape-Ups brand shoe and attached marketing campaign.   Skechers touts clinical trials and testimonials in supporting its claims that wearing Shapes-Ups can improve posture, tone and firm muscles, and burn more calories than normal tennis shoes.  Are these allegations true?  Depends who you ask.  

Naturally, Skechers has adamantly denied the allegations in the complaint, calling the lawsuit inasmuch as frivolous, while pointing to its own studies and numerous customer testimonials. However, recently, the American Council on Exercise (“ACE”) released a study testing the effectiveness of Shape-Ups and similar training shoes on the markets.  The results were unanimous.  The report concludes, “[A]cross the board…  There is simply no evidence to support the claims that these shoes will help wearers exercise more intensely, burn more calories or improve muscle strength and tone.”  However, that doesn’t mean Shape-ups wearers aren’t losing additional weight, as the ACE’s Chief Science Officers points out, “These shoes may be encouraging a fair number of people who probably wouldn’t put on a normal pair of walking shoes and go out for a walk, to do so because they think they’re getting some super toning effect.” 

The opinions (see comments) of Shape-Ups wearers varies.  While some consumers swear the shoes work as advertised, others are claiming sore calves, knees, or hips without the desired results.  Is the former group merely showing the reactions of a placebo effect in reliance on Skechers marketing campaign?  Or perhaps is the latter group simply not using the shoes as advertised?  With Skechers public vigilance thus far in defending the suit it appears eventually we will find out.  Until then, “shape up” at your own risk. 

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For years, manufacturers have been required to report nutritional information on packaged food products.  With the dramatic increase in obesity in American throughout the last 20 years, many manufacturers have begun to include additional nutritional messages on the front of their food packages.  These messages are referred to as "front-of-package" ("FOP") labeling, and are generally quick summaries of such nutritional data as number of calories, grams of trans fat, saturated fat, etc. 

Congress directed the Centers for Disease Control and Prevention to undertake a two-phase study on these FOPs.  The CDC issued its report on the first phase of the study concentrated on the advantages and disadvantages of the various FOPs utilized by food manufacturers, which will then allow further investigation into which types of FOPs are most effective with consumers during the second phase. 

The report determined that some information is more useful than others when contained in FOPs.  The information it deemed useful included caloric content, serving size, grams of trans fat, grams of saturated fat, and sodium levels.  It further determined that any other information, such as amount of fiber, vitamins, etc., was not as helpful when included in FOPs.

Now that the first phase of the study has been completed, the focus will now be on which types of FOPs have the most effect on the consuming public.  As a result, we're sure to see an increase of FOPs on food product packaging, hopefully ones that aren't false and misleading according to California law. 

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Have you purchased any or all of the products from the Lancóme High Resolution- 3x line, including its High Resolution Refill-3x Day Cream, Night Cream and/or Eye Cream and failed to see the advertised results? Specifically, have you found that the products failed to “[r]efill wrinkles in just one hour!”? Or that the product didn’t live up to the claim that “[i]n 4 weeks, wrinkles appear significantly reduced, as though refilled from within”? Did you find that the claim that “skin is saturated with moisture 94% and looks youthfully plumped” was misleading based on the actual results the product produced?

Please contact us here or by calling 213.596.6530 to tell us about your experiences.

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