A New Jersey-based company, Aromaflage, and its owners have agreed to settle charges brought by the Federal Trade Commission (FTC) regarding the company’s sale of sprays and candles that claim to be insect-repelling. According to the complaint, the company made false or unsubstantiated insect repellency claims, false establishment claims, and deceptive endorsement claims, and deceptively failed to disclose material connections with endorsers.
Aromaflage falsely and misleadingly represented that its sprays and candles effectively repel mosquitoes, including mosquitoes that may be carrying diseases such as Zika virus, dengue, chikungunya, and yellow fever, and that they repel mosquitoes as effectively as 25% DEET ([N,N-diethyl-meta=toluamide], the active ingredient in many insect repellent products). The Aromaflage website claimed that the products had “been rigorously tested at one of the world’s leading Universities and found to be as effective at repelling mosquitoes as the leading brand.” The complaint alleges that, in truth, the testing did not include Aromaflage candles or use human subjects, even though the Aromaflage products are meant to overcome mosquitoes’ attraction to humans. The testing also did not use more than one species of mosquito, even though other species can carry many of the diseases cited in the Aromaflage advertising and can react differently to the same repellent. Furthermore, the complaint alleges that the testing results show the Aromaflage spray performed worse than water for the first thirty minutes, and that the 25%-DEET product performed better than the Aromaflage sprays for at least the first ninety minutes of a 2.5 hour test.
The company represented that reviews posted on the Aromaflage online storefront reflected the experiences and opinions of impartial users of the Aromaflage sprays and candles, when in fact, several 5-star reviews were posted by one of the company’s owners and her mother and aunts. These reviews failed to disclose that those individuals had a material connection to the company and its owners. Such disclosures are required by the FTC so that consumers can effectively evaluate product reviews when determining whether to buy a product, or ascertaining how to use a product.
The proposed consent order, which will settle the FTC’s charges once final, would prohibit Aromaflage from making any of the misrepresentations alleged in the complaint and require the company to clearly and conspicuously disclose any unexpected material connection between an endorser and the product or anyone associated with it. When the FTC issues a final consent order, it has the force of law with respect to future actions, and each violation of such order may result in a civil penalty of up to $41,484.
While the Environmental Protection Agency (EPA) has regulatory authority over most insect repellents marketed in the US, the Aromaflage insect repellent sprays and candles are exempt from EPA regulation since they are formulated with ingredients like geranium, lemongrass, vanilla, thyme, lavender, and other ingredients that EPA defines as “minimum risk” pesticides because they pose little or no risk to human health or the environment. For this reason, products formulated with minimum risk pesticides, such as the Aromaflage sprays and candles, can be placed directly on the market without being subject to EPA scrutiny, including Agency review of performance claims for which the product is being promoted and data that substantiates such claims. Thus, the onus for making truthful and accurate claims for such minimum risk insect repellents falls directly on the product manufacturer.
Arent Fox’s Advertising & Promotions practice will continue to monitor developments in this area. If you have any questions, please contact Sarah Bruno, James Ravitz, Dan Jasnow, Casey Perrino, or the Arent Fox professional who usually handles your matters.