Scent marketing is as old as a realtor baking cookies in a house up for sale and as new as Oscar Mayer’s “bacon” alarm clock.  Harnessing the primal power of smell represents a final frontier of subliminal advertising.

Appealing to our sense of smell excites marketers precisely because smells trigger an immediate emotional response by a consumer—rather than a thoughtful one.  “With all other senses, you think before you respond, but with scent, your brain responds before you think,” per Pam Scholder Ellen, a Georgia State University marketing professor.

The phrase scent marketing is defined as using scents “to set a mood, promote products or position a brand.”[1]  While scents most often are primary product attributes (e.g., perfumes and deodorizers) or secondary product attributes (e.g., the smell of Ivory soap or Play-Doh), the use of ambient scent marketing is growing fast.  Airlines, hotels, retail stores, and casinos are increasingly injecting scents—sensory signatures—into the environment’s atmospherics, believing this will enhance the customers’ mood, translating into more favorable evaluations and higher sales.[2]

Because scents invade our space simply as a function of our breathing, consumers cannot easily escape ambient scent marketing. We can more readily control or avoid looking at or hearing marketing messages.  In this regard, scent marketing undercuts a consumer’s “perceptual” defenses.  In further contrast to scent marketing, sights and sounds are processed by more analytical parts of our brains; whereas olfaction is “our phylogenetically oldest and most primitive sense.”[3]

A consumer’s inability to avoid or discern ambient scent marketing or process it intellectually raises a novel legal issue: when does foisting ambient scents on consumers become a deceptive trade practice? 
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For centuries, we’ve ingested magic elixirs in pill and syrupy forms to cure whatever ails us and to ward off future illness.  Hard scientific evidence of efficacy may have been lacking for these nostrums, but lingering doubts fell sway to the testimonial charms and hard-sell tactics of proverbial snake oil salesmen.  Once operating door-to-door, these

With an era of 3D printable food dawning,[1] the Star Trek “food replicator” is beginning to look more like modern reality instead of the stuff of science fiction.  Every day and in every way, food scientists and flavor technologists are figuring out ways to deconstruct and reassemble our favorite dishes out of whole cloth.

This is not a new trend.  The desire to mimic basic foodstuffs began in earnest in the 19th century.  French scientists invented margarine as a cheap substitute for butter to better feed Napoleon’s standing armies.  Soon after margarine’s introduction into the U.S. consumer marketplace, palming it off as butter became rampant.[2]

The increasing ability to manufacture and promote “faux” foods that compare or contrast in some manner to their natural counterparts spawns a host of intriguing and perplexing legal issues.  This article focuses on just one of those issues: a “faux” food producer’s “standing” to pursue a Lanham Act false advertising claim against a producer of comparable “real” food.

Faux Gras v. Foie Gras

A case pending in California federal court offers a stunning example of what happens when a “fake” food producer targets a real food counterpart by simply adopting a similarly sounding name (or playful variant thereof) and selling a food intended to mimic or substitute for that of its would-be competitor.  Voilà, the ersatz food producer instantly manufactures standing sufficient to satisfy the “competitor” requirement of a Lanham Act false advertising claim pursuant to 15 U.S.C. § 1125(a)(1)(B).

The case is Regal Vegan v. HVFG (d/b/a Hudson Valley Foie Gras, Case No. 3:12-cv-05809 (N.D. Cal.)  Plaintiff Regal Vegan sells “Faux Gras,” a “toasted walnut lentil pâté.”  The defendant Hudson Valley produces and sells both fresh foie gras (duck liver) and a foie gras mousse (a pâté form).  Regal Vegan claims that Hudson Valley falsely advertises its foie gras as “the humane choice” for such products.  Regal Vegan asserts that foie gras production involves force-feeding of ducks to enlarge their livers—and that this “gavage” technique cannot possibly be labeled or categorized as humane under any circumstances.  Hudson Valley’s website notes that its ducks used for foie gras production are “Cage Free.”

Foie gras is considered a delicacy, especially in French culture.  The “gavage” fattening technique of waterfowl can itself be traced back to ancient Egyptian culture.[3]  Hudson Valley’s foie gras products are depicted on its website as follows:[4]
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Food label lawsuits are often exercises in byzantine legal logic.  This is so because of the peculiar interplay between preemptive federal food labeling laws and regulations on the one hand and federal and state unfair competition and false advertising claims on the other.

The ability of individuals to pursue food mislabeling claims depends on whether allowing such claims to proceed would conflict with the purpose and intent of federal food labeling law and implementing regulations, such as those promulgated pursuant to the Food, Drug and Cosmetic Act of 1938 (“FDCA”) or the Nutrition Labeling and Education Act of 1990 (“NLEA”).  Those federal laws do not allow private lawsuits to enforce their provisions.

In Pom Wonderful v. The Coca-Cola Co., the Court of Appeals for the Ninth Circuit just eliminated a federal Lanham Act basis for pursuing food misbranding claims over regulated juice products.  This brief article examines the Pom case and what it means for the future of food label litigation.

The Nature of Pom’s Fruit Juice Label Claim

Pom contends that Coca-Cola’s labeling of its Minute Maid “Pomegranate Blueberry” juice label is misleading and deceptive because the juice product only contains 0.3% pomegranate juice, 0.2% blueberry juice (and 0.1% raspberry juice).  Most of the product consists of 99.4% apple and grape “filler” juices.  The brand label prominently displays the “Pomegranate Blueberry” name and features a colorful fruit vignette with a split ripe pomegranate, a sliced apple and a handful blueberries, raspberries and red grapes.  The label includes the legend “Pomegranate Blueberry Flavored Blend of 5 Juices.”  Although not at issue in the case, Minute Maid’s label also touts the fortified inclusion of an omega-3 fatty acid nutrient, DHA (docosahexaenoic acid), with the tag line of how its inclusion will “help nourish your brain.”


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