FTC issues warning letters over privacy risks in audio monitoring technology resulting from use of Silverpush code



The FTC Issued warning letters to app developers using ‘Silverpush’ code — a piece of software that can monitor a device’s microphone to listen for audio signals that are embedded in television advertisements. The software is designed to monitor consumers’ television use through the use of “audio beacons” emitted by TVs, which consumers can’t hear but can be detected by the software. The software is capable of producing a detailed log of the television content viewed while a user’s mobile device was turned on for the purpose of targeted advertising and analytics.

The letters note that Silverpush has stated publicly that its service is not currently in use in the United States, but it encourages app developers to notify consumers that their app could allow third parties to monitor consumers’ television viewing habits should the software begin to be used in the United States.

Through the app developers ask users for permission to use the device’s microphone, despite the apps not appearing to have a need for that functionality. The letters also note that nowhere do the apps in question provide notice that the app could monitor television-viewing habits, even if the app is not in use.

The letters warn the app developers that if their statements or user interface state or imply that the apps in question are not collecting and transmitting television viewing data when in fact they do, that the app developers could be in violation of the FTC Act.

The letters were issued to 12 app developers whose apps are available for download in the Google Play store and appear to include the Silverpush code.

FDA Warns Kind LLC about mislabeling and misbranding their products with unsupported nutrient content claims

The FDA sent a letter warning Kind LLC, the maker of a variety of bars, that their Kind Fruit & Nut Almond & Apricot, Kind Fruit & Nut Almond & Coconut, Kind Plus Peanut Butter Dark Chocolate + Protein, and Kind Plus Dark Chocolate Cherry Cashew + Antioxidants products are misbranded under the Federal Food, Drug, and Cosmetic Act (“FDCA”) as improper implied nutrient content claims, because they bear statements suggesting that the product may be useful in maintaining healthy dietary practices, and those statements are made in connection with claims or statements about nutrients.

According to the FDCA, a manufacturer may use the term “healthy” as an implied nutrient content claim on the label of a food provided that the food, among other things, is “low saturated fat”[i.e., the food has a saturated fat content of 1 g or less and no more than 15 percent of the calories are from saturated fat].

The FDA bars found the following products did not meet this standard.

Kind Fruit & Nut Almond & Apricot which contains 3.5 g of saturated fat per 40 g

Kind Fruit & Nut Almond & Coconut product which contains 5 g of saturated fat per 40 g

Kind Plus Peanut Butter Dark Chocolate + Protein product contains 3.5 g of saturated fat per 40 g

Kind Fruit & Nut Dark Chocolate Cherry Cashew + Antioxidants contains 2.5 g of saturated fat per 40 g

The FDA also found Kind’s use of  the phrase “antioxidant-rich” and “good source of fiber” in violation of the FDCA labeling requirements.


Accurate labeling matters.  If you were misled by the labeling on this product or any others, we want to hear from you. Please share your story with community and/or directly with us via the contact a lawyer box below.  

L’Oreal USA, Inc. named in class action over allegedly false advertising of its Lancôme cosmetic products

This is a class action on behalf of residents of California against Defendants for misleading consumers through the labeling, marketing, and advertising of Lancôme cosmetic products, including its Génifique, Renergie Lift Volumetry, Absolue Precious Cells, Visionnaire, and High Resolution line of products (collectively, “anti-aging cosmetic products.

The class consists of those California residents who purchased the above named Lancôme cosmetic products from November 5, 2008 to the present (the “Class Period”).

As alleged in the complaint, Lancôme engaged in deceptive acts and misrepresentations concerning the Company’s anti-aging cosmetic products which have injured Plaintiffs and the Class.

During the Class Period, Lancôme labeled, advertised, marketed, and sold its anti-aging cosmetic products using language that led reasonable consumers to believe the products could prevent, reduce, or reverse the signs of aging, including by manipulating biological structures. As detailed more fully herein, Lancôme claimed its products would affect the structure of the human body in several ways, including boosting the activity of genes, stimulating production of youth proteins, improving the condition around stem cells, and stimulating cell regeneration in order to retard or reverse the signs of aging.

On September 7, 2012, the United States Department of Health and Human Services, United States Food and Drug Administration (“FDA”) issued a Warning Letter to Lancôme.1 In the Warning Letter, the FDA alleged that Lancôme was marketing the anti-aging cosmetic products complained of herein as new drugs, in violation of FDA regulations.

In sum, the Warning Letter stated that if Lancôme’s anti-aging cosmetic products do what Lancôme claimed, the products “affect the structure” of the human body. According to the FDA, this property would render the products drugs. However, Lancôme does not have approval to market any of its products as drugs. Lacking such approval, the FDA classified Defendants’ products as unapproved new drugs. Marketing new drugs without FDA approval is illegal under the federal Food, Drug, and Cosmetic Act (“FDCA”).

As alleged, Lancôme engaged in pervasive deceptive labeling and advertising of its anti-aging cosmetic products. Lancôme intended to and did induce Plaintiffs and the Class collectively to spend millions of dollars on the Company’s anti-aging cosmetic products based on the belief that the products would perform as represented by Lancôme.

Lancôme developed its advertising scheme to grow the Company’s sales of its anti-aging cosmetic products based on deliberate misrepresentations of the products’ actual properties. Lancôme knew that consumers concerned about signs of aging would pay a considerable markup for products that claimed to slow or reverse those signs rather than simply mask them. Accordingly, Lancôme charged distributors a sizeable premium for these products.

If Plaintiffs and the Class had been aware of the truth, they would not have purchased the Lancôme anti-aging cosmetic products and/or would not have paid a premium price.

Plaintiffs seek an order compelling Lancôme to: (1) restore to Plaintiffs and the Class the amounts by which they were injured, (2) destroy all misleading and deceptive materials and products, or re-label them with language to correct the confusion complained of herein, and (3) conduct a corrective advertising campaign informing consumers that the products were formerly advertised to have properties that they do not have, specifically identifying each such property.

FDA Warns That Mirapex May Increase Risk of Heart Failure

FDA has alerted health care professionals to the possibility that the medication Mirapex (pramipexole) could increase the risk of heart failure. Mirapex is a prescription medicine used to treat the signs and symptoms of Parkinson’s disease and restless legs syndrome.  It is manufactured by Boehringer Ingelheim Pharmaceuticals, Inc.

Risk: FDA evaluated an analysis of clinical trials and found that heart failure was more frequent with Mirapex than with a placebo treatment. However, these results were not considered statistically significant. FDA also evaluated two epidemiologic studies that suggested an increased risk of heart failure with Mirapex use. However, study limitations made it difficult to determine the influence of other factors.

Thus FDA has not been able to determine conclusively whether Mirapex increases the risk of heart failure. The agency is working with the manufacturer to clarify the risk and will update the public when more information is available.

At this time, FDA has not concluded that Mirapex increases the risk of heart failure.

The FDA suggests that patients should contact their health care professional if they experience any symptoms of heart failure, such as shortness of breath, swelling of the feet, ankles, legs, or abdomen, fatigue and weakness, rapid or irregular heart beat, chest pain, or persistent cough or wheezing with white or pink blood-tinged phlegm.