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False Advertising Times Three

Posted by Andrew J. Barovick | Nov 12, 2014 | 0 Comments

Here is a brief roundup of recent news in the area of false advertising.  Two stories concern medical care, and  consumers of medical care ought to know about them.  One delves into the subject of mayonnaise, and whether a certain upstart manufacturer is selling the “real” item.

First, from The Center for Public Integrity, comes the troubling news that nursing home care levels may be much lower than families think.   The Center's investigation found stark differences in reports of staffing levels between the Nursing Home Compare website, used by many consumers in choosing a facility, and levels determined by the Center based on financials submitted by the homes. “More than 80 percent of the facilities reported higher registered nurse staffing levels on the public website than those the Center calculated through its analysis of the cost reports. In more than 25 percent of nursing homes nationwide, the amount of staff listed on the public website was at least double the level in the cost reports.”  It is no secret that understaffing, in nursing homes or any other type of medical facility, invites avoidable complications and errors. So, buyer beware. Look beyond the Nursing Home Compare website. Visit the homes under consideration. Speak to families of current residents. Check consumer-oriented websites, and the Better Business Bureau. This difficult decision has become more challenging for families, who now need to beware of false advertising.

A medical manufacturer has also been accused of false advertising.  It seems Becton Dickinson and Co needed to gain an edge in advertising its safety syringes. The company claimed that its products were not only sharper, but wasted less medicine than those made by rival Retractable Technologies Inc .  Retractable sued Becton, claiming that Becton had used false advertising to attempt to corner the safety-syringe market.  Following a jury trial, Retractable won $340 million dollars in damages, and a federal court order that Becton notify its customers of its false claims.

Because I don't want to leave you feeling completely depressed about false advertising, I bring you news that pits health benefits against accuracy in advertising.  Hampton Creek, a maker of vegan mayonnaise, Just Mayo, has been sued by Unilever, maker of Hellman's mayonnaise.  At issue is the age-old question: What is mayonnaise really made of?   FDA guidelines list egg yolk as a necessary ingredient, and even Hampton Creek acknowledges that there is no egg yolk in Just Mayo.  So is Just Mayo guilty of false advertising? The company president says “no,” pointing out that his company never claimed it was selling mayonnaise. That's why the product is called “mayo.”  Hampton Creek's owner has vowed to continue the fight against Big Mayo.

UPDATE:  Unilever, poster corporation for Big Mayo, may have just pointed out that it has stretched the definition of “real” mayonnaise in the same manner it has accused smaller competitor, Hampton Creek, of doing.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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