Class action alleges American Heart Association logo is a paid endorsement
Sorry, Charlie
When New York resident Abraham Warner filed suit against tuna giant StarKist Co. for its packaging art, it wasn’t over its beatnik-inspired mascot, Charlie the Tuna.
The offending decoration on the StarKist can – Warner purchased StarKist Low Sodium Solid White Albacore Tuna in Water, in case you’re curious – is the “Heart-Check mark,” an infographic promoted by the American Heart Association (AHA). According to the AHA, the mark is “a simple tool to help you Eat Smart. When you see it, you can be confident that a product aligns with the American Heart Association’s recommendations for an overall healthy eating pattern.”
While there are nutrient-, sodium- and fat-level requirements for products bearing the mark, the complaint asserts that the logo’s popularity is due to more commercial preoccupations.
Smells Fishy?
Warner claims that companies must pay the AHA to use the mark on their packaging and that “the AHA makes a significant profit off the sale of rights to use the Heart-Check Mark.”
Furthermore, the claim alleges, the AHA actively promotes the commercial appeal of the mark. Warner quotes AHA materials describing the Heart-Check mark: “Shoppers want clear, simple purchase guidance from a trusted source. The American Heart Association heart-check mark increases product sales because seeing the mark on a package assures shoppers they are making a smart choice.”
Unfortunately for StarKist, argues Warner, the inclusion of the mark on the product label violates state and federal laws because it fails to disclose that the mark is an endorsement the company paid for – #Sponsored! According to rules published by the FDA, for instance, “a statement should be included in close proximity to the claim, informing consumers that the organization or individual was compensated for the endorsement.”
Warner says that the paid mark, which was used without explanation on at least 13 of StarKist’s products, artificially raised the price of the goods.
The Takeaway
With that argument, Warner filed against StarKist in the Northern District of New York in April 2018, alleging deceptive acts or practices and false advertising under New York General Business Law and false or misleading labeling under the New York Agriculture and Markets Law. He sought injunctive and monetary relief.
StarKist filed to dismiss in May 2018, arguing in part that the mark was not misleading because it accurately conveyed the endorsement, an argument whose ship had sailed. “The complaint adequately alleges that StarKist pays an annual fee to use the Heart-Check Mark but omits this fact from its labels,” the court’s opinion maintained.
But the court sided with StarKist when responding to the request for injunctive relief. “Warner does not expressly allege that he is at risk of future injury. Moreover, Warner is now aware that StarKist pays the AHA to place the Heart-Check Mark on its labels.” The court held that this meant there was no real and immediate threat of future injury to justify injunctive relief.
So this case sails along, for now at least.
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