The Work

January 20, 2010 6:40 PM

The 2010 Ad Wars Begin: Weight Watchers v. Jenny Craig

Posted by Zach Lowe

In the second half of last year, we and other publications wrote a lot about the miniboom in advertising law as companies made more comparisons with their competition in ads, leading those competitors to respond with lawsuits. 

That trend is not slowing down as we enter 2010. On Tuesday, Weight Watchers, represented by Paul, Weiss, Rifkind, Wharton & Garrison, filed suit against Jenny Craig, claiming that a new Jenny Craig ad campaign contains false claims about the effectiveness of Jenny Craig's diet plans versus Weight Watchers' point system. 

Martin Flumenbaum and Lynn Bayard, the head Paul Weiss partners on the matter, won an early victory Wednesday, when the federal district court judge hearing the case in New York issued a temporary restraining order calling for Jenny Craig to pull the ads. (Flumenbaum began representing Weight Watchers through his connection to Heinz, which sold Weight Watchers in 1999.) 

In the ad campaign, Jenny Craig (and spokeswoman Valerie Bertinelli) cite a "major clinical trial" they say proves dieters on Jenny Craig's regimen lose twice as much weight as dieters "on the largest weight-loss program." The ads do not name Weight Watchers, but Weight Watchers claims it's the obvious target. 

In its complaint, Weight Watchers argues that Jenny Craig's claim is based on two separate trials, conducted ten years apart, and that the conclusions do not withstand scientific scrutiny. The complaint charges Jenny Craig with false advertising, deceptive trade practices and unfair competition. 

In other advertising-related news, Anheuser-Busch InBev scored an out-of-court victory over arch rival MillerCoors regarding its claim that Miller Lite cans and bottles are outfitted with a "taste protector cap" that "locks out air" and "locks in that great Pilsner taste." InBev filed a complaint with the National Advertising Division (NAD), the ad industry's self-policing body, claiming Miller should have to pull the ads, because they are misleading. 

On Wednesday, NAD (which has limited enforcement power) sided with InBev. The reason? The technology MillerCoors is touting has been used for years in both its products and those of its competitors. There is nothing new about it, NAD ruled, but the ads could lead consumers to believe there is. 

The organization recommended MillerCoors cut references to the taste protection technology from its ads. The company said it would take NAD's recommendations under advisement. 

Manatt, Phelps & Phillips partner Linda Goldstein advised MillerCoors. Kenneth Plevan of Skadden, Arps, Slate, Meagher & Flom advised InBev. Both lawyers declined to comment. 

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Because the new FTC Guidelines regarding advertising and endorsements just went into effect December 1, 2009, I imagine this is just the beginning of many claims to come. I recently posted to bloggers regarding these new rules at I really enjoy your blog and hope to hear about more cases like this.

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