This Lil' Piggy Sent Home (FTC Enforcement Actions)

Regular readers know that there is no private right of action for violations of the FTC Act. Most of us also know, however, that aggressive plaintiffs' lawyers frequently try to "piggy back" on FTC enforcement actions by bringing private class actions premised on the same conduct as the FTC action. This is one such tale. Here, the defendant (the wolf) huffed and puffed to the judge that the plaintiffs' case was made of straw and should be blown down. The judge, finding that the plaintiffs' claims were premised on a lack of substantiation not falsity, agreed.

In 2010, the FTC sued and settled with Nestle over claims made about Nestle's BOOST Kid Essentials drink. The FTC alleged that Nestle claimed that the drink and its probiotic laced straw could: prevent upper respiratory tract infections in children; strengthen the immune system to protect against cold and flu; and reduce school absences due to illness. The FTC alleged two different theories of deception. First,