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The Great British Infant Formula? Or Does the Made in USA Standard Apply to European Imports?

Carl Hittinger, Michael Neminski Discuss District Courts’ Split on FTC’s Noncompete Rule Authority

We are hot off of the green grass and preppiness that is <a href="https://apnews.com/article/princess-wales-kate-wimbledon-db06da1f82fdc81a95992b08748b99bf" target="_blank" rel="noreferrer noopener">Wimbledon</a>. We are all burning for Paris right now with the <a href="https://www.nytimes.com/2024/07/26/style/the-most-stylish-olympic-opening-ceremony-ever.html">Olympics</a>. And who doesn’t dream of <a href="https://lavieenmarine.com/best-summer-destinations-in-europe/" target="_blank" rel="noreferrer noopener">August in Croatia or Greece</a>? <a href="https://getyarn.io/yarn-clip/155ffb61-b30c-4fb8-ac1a-bf50a8438350/gif" target="_blank" rel="noreferrer noopener"><em>European Vacation</em></a> – yes, please.

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NAD has also been thinking about the Old World, but in connection with European origin claims in a <a href="https://bbbprograms.org/media-center/dd/kendamil-infant-formula">recent case</a> involving infant formula. <a href="https://us.kendamil.com/products/goat-first-infant-milk" target="_blank" rel="noreferrer noopener">Kendamil’s products</a> have a blue circle with nine stars on the packaging. This is similar to the <a href="https://en.wikipedia.org/wiki/Flag_of_Europe#References" target="_blank" rel="noreferrer noopener">European flag</a>, which has also been a symbol of the European Union since the ’80s. The challenger asserted that this imagery told consumers that the product was made in the EU, while in many cases the products were made from milk sourced from farms in England, a now-former member of the European Union.

There was a good amount of back-and-forth over how consumers would understand the nine stars shown in the Kendamil circle versus the 12 stars in the actual flag. (That includes, FWIW, comparing what shirts European golfers wore at the Ryder Cup tournament.) As an aside, it can sometimes be hard for smart lawyers arguing at NAD or smart lawyers at NAD to truly put themselves “into the shoes” of the “reasonable consumer.” An ETIAS (European Travel Information and Authorisation System) <a href="https://etias.com/articles/eu-country-survey#:~:text=We%20surveyed%201%2C000%20Americans%20per,of%20the%20UK%20post%2DBrexit." target="_blank" rel="noreferrer noopener">survey from a few years ago</a> noted that 44% of Americans didn’t know what countries were in the EU and only one-fifth of Americans were aware that the UK was not part of the EU!

It is not clear whether NAD would have looked to FTC guidance for how consumers would interpret a “Made in Europe of EU and non-EU milk” claim. NAD said it specifically was not addressing whether the country of origin markings were compliant with US customs laws. And it is not entirely clear whether NAD would import (pun intended) the domestic origin claim rules from the FTC in full to foreign origin claims. At least in this case, NAD said there may be some differences in how consumers would understand claims about origins from a block of countries like the EU versus one particular country.

Lasering in on the savvy American infant formula buyers who also know their way around European geography and politics, NAD focused on the fact that there were other clues on the packaging about origin aside from the flag imagery, scoring a big win for examining claims in their overall context and “net impression” analysis. Below the blue circle with the stars were the words “European made,” and above it was “made with love in Europe.” NAD noted that “EU” and “European Union” are not words found on the packaging (although EU standards are referenced on the website). Further, on the bottom of the packaging, consumers interested in specifics can find the name of the country from which a specific product came. Therefore, NAD found the challenged use of the flag on packaging to be supported and not misleading. In other words, reasonable consumers would understand the formula came from Europe generally at first sight and then would investigate further for more specific country of origin detail. When the flag is used on the Kendamil website, however, one cannot look to the bottom of the packaging for clarity, and so NAD recommended that, when using the flag imagery on its website, Kendamil add the specific country of origin information for specific products.

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