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October 2009

SPECIAL ALERT

FTC Enters Into Final Consent Agreement Regarding Product Claims

The FTC entered a final consent agreement with Constellation Brands concerning the FTC’s charges that ads for Wide Eye caffeinated schnapps were deceptive.   Wide Eye was a schnapps product containing 30 percent alcohol by volume.  Ad claims included “Wake Up @WideEye.com,” “I am your wake up call,” and “When you party with the world’s first caffeinated schnapps it’ll seem like the rest of the world is sleepwalking through life.”  According to the FTC, these claims expressly or by implication promised that consumers will remain alert while consuming Wide Eye.  A number of state attorneys general had also called on the FTC to crack down on Wide Eye, arguing that it, like other popular energy drinks, appealed to youth and underage drinkers.  Prior to product launch, Constellation had obtained all required U.S. Alcohol & Tobacco Tax & Trade Bureau (TTB) approvals for Wide Eye and the product’s brand name and tagline were subsequently found to be in accordance with the voluntary DISCUS Code of Responsible Marketing Practices.

The consent agreement, which does not constitute an admission of a violation of law, prohibits Constellation from representing “expressly or by implication, including through the use of a product name or endorsement, that such product…will counteract the effects of alcohol consumption” unless the advertiser has “competent and reliable scientific evidence” supporting that representation.  The FTC order pertains not just to Wide Eye, but also to any other alcohol product containing caffeine, ginseng, taurine, guarana, or any stimulant.  The Order puts any such Constellation products under the FTC’s close eye until the order expires in 2029. 

Practice Tip:  All claims for a product, including a name that might imply a claim, must be supported by competent and scientific evidence in the advertiser’s possession at the time the claim is made. 

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