Mushroom-based “superfoods” face scrutiny in a recent NAD investigation. How might claim substantiation have functioned to prevent the challenge?

NAD Recommends That Ryze Superfoods Pull Health Claims

The wellness supplement market is estimated to reach 470 billion by 2032. In a growth market, competition is intense—but brands that make exaggerated claims may attract regulatory scrutiny, potentially leading to costly disputes and erosion of consumer trust.

Case Background: NAD Inquiry Into Ryze’s Claims

As part of its ongoing marketplace monitoring program, the National Advertising Division (NAD) of BBB National Programs launched an inquiry into the express and implied claims made in online advertising from Ryze Superfoods. Ryze manufactures coffee, matcha, hot cocoa, chai, creamer, and oatmeal products containing mushrooms, which the company calls “functional,” meaning medicinal. The NAD examined whether certain marketing statements from Ryze were supported by reliable evidence.

Challenged claims included assertions that RYZE Mushroom Coffee provides:

• “All-day energy”
• “Sharper focus”
• “Healthier digestion”
• “Better immune support”
• “Better sleep”

NAD also looked at implied claims suggesting that RYZE Mushroom Matcha could provide appetite-suppressing benefits comparable to GLP-1 agonists (such as Ozempic), but “without the side effects.” Before NAD issued a ruling, Ryze informed the division it would permanently discontinue the challenged claims and “modify the presentation” of its advertising in the future. NAD therefore closed the inquiry, treating the discontinued claims as though NAD had recommended they be withdrawn.

Unsubstantiated Claims Carry Risks

Health benefits are powerful marketing tools, but they carry reputational and regulatory risks. Making unsubstantiated or false claims can lead not only to investigations by NAD, FTC, or state attorneys general, but in some cases, lawsuits from consumers or competitors and loss of credibility with customers and retailers. Functional foods and supplement markets face heightened scrutiny, and even the perception of overstated benefits can erode consumer trust.

The Function of False Advertising Surveys

With respect to the Ryze mushroom-based supplements, a scientific study could have substantiated claims that they were “natural alternatives” to GLP-1 agonists. However, because those claims were implied rather than stated outright, what consumers thought the ads were saying was also at issue. Did the messaging lead consumers to believe the mushrooms had the same efficacy as prescription GLP-1 drugs like Ozempic? Or did consumers simply take away a more general impression about supporting wellness and metabolism?

A false advertising survey could have answered these questions. Such a survey could test whether the advertising conveyed the message that the mushroom product could achieve drug-like results. A survey could show whether a significant portion of consumers interpreted the advertising as suggesting the product was comparable to GLP-1 agonists. That perception, if the claim is not substantiated by research, could support a false advertising claim. Alternatively, a survey could demonstrate that consumers did not take away a drug-equivalence message, which would help defend the advertising as not misleading in context.

The Ryze Superfoods case shows that NAD’s regulators are paying attention to express and implied health claims made by wellness brands, and brands that overpromise may find themselves under scrutiny. IMS Legal Strategies conducts reliable consumer research to substantiate advertising claims or provide evidence in false advertising litigation. Our experts design and conduct studies that stand up to NAD, FTC, and courtroom review, helping companies market with confidence. Contact us today to discover how advertising substantiation surveys can protect your brand and give you a market advantage.

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Case Background

Multiple district attorneys from counties in California filed a civil complaint in San Diego County, alleging that Lowe’s charged customers prices higher than their lowest advertised or posted price in violation of California’s consumer protection laws. Between 2018 and 2022, more than 4% of its merchandise was charged improperly, with an average overcharge of 19.3%, according to the Los Angeles County District Attorney’s office. The settlement program below was mandated to remain in effect for three years.

The settlement included $1,000,000 in civil penalties distributed among six counties (Alameda, Los Angeles, Orange, San Bernardino, Sonoma, and San Diego), $61,215.90 in restitution to consumer agencies that incurred costs when investigating, a court-ordered injunction prohibiting the chain from charging more than the lowest advertised price, and mandatory changes that affect Lowe’s stores. The changes include enhanced training to Lowe’s staff, more internal audits, a rule against raising prices on the weekend, more employees who are responsible for price accuracy, and periodic audits of prices at the stores.

Consumer Perception Matters

When shoppers see an advertised or shelf price, they reasonably believe they will be charged that price at checkout. If they are charged a different price, they may have a viable false advertising lawsuit. Although the Lowe’s case settled, if it had gone to trial, consumer surveys could have played an essential evidentiary role in such a lawsuit.

Surveys are frequently used in false advertising litigation to measure whether advertising statements are likely to mislead a substantial portion of consumers. A strategy utilizing a false advertising survey could measure whether consumers believe the advertised or posted shelf price represents the final checkout price, whether consumers expect temporary price changes (such as weekend adjustments) to be disclosed, and/or whether the advertised prices were material to the consumers’ decision to purchase the items. This evidence can help courts determine whether the practice is materially misleading to the average consumer.

Lowest Pricing Practices

Regulators and courts enforce consumer protection laws relating to advertising and pricing accuracy. Misalignment between advertised prices and point-of-sale prices can trigger a number of enforcement actions, such as fines and court cases. In addition, the reputational damage from false advertising claims can be damaging to consumer trust and loyalty.

IMS Legal Strategies designs and conducts false advertising and consumer perception surveys that withstand legal scrutiny. Our surveys measure how real consumers interpret advertising, pricing, and promotional claims. Our experts have testified extensively in state and federal courts and regulatory bodies, offering reliable consumer survey evidence in support of, or against, consumer protection claims.

If your organization is facing a false advertising or consumer protection challenge, consumer surveys can provide the insight you need to understand risk and defend your position. Contact IMS today to discuss how we can help.

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Secret Wu-Tang Clan album ruled a trade secret. How might creators seek to protect unreleased works under trade secrets laws, and how might consumer survey research be utilized to enforce new protection strategies?

The Rarest Album in the World

Between 2007 and 2013, Wu-Tang Clan secretly recorded Once Upon a Time in Shaolin as a statement piece on the devaluation of music in the digital era. One physical copy of the album was produced and the purchase price included contractual stipulations preventing it from being commercially exploited until 2103.

In 2015, a pharmaceutical executive named Martin Shkreli purchased the album for $2 million. Shkreli was later convicted of securities fraud, and the U.S. government seized the album through a forfeiture order and sold it. It was eventually acquired by PleasrDAO, a group that collects non-fungible tokens, a type of digital art, that it believes are culturally significant. After Shkreli was released from prison, he admitted to making unauthorized copies and even live-streaming portions of the album to nearly 5,000 listeners. PleasrDAO sued, alleging violations under the Defend Trade Secrets Act (DTSA).

The Court’s Reasoning

PleasrDAO alleged the album could qualify as a trade secret, arguing that the album has never been commercially released and remains largely unknown to the public, the band actively restricted access and use, the album’s worth derives from its exclusivity and secrecy, and the album is difficult to reproduce or acquire.

Judge Pamela Chen of the Eastern District of New York declined to dismiss the trade secrets claim. Prior cases attempting to legally classify music as trade secrets, involving unreleased Prince and Janet Jackson recordings, were viewed as valuable for their potential public release, not their secrecy. Judge Chen acknowledged this is “uncharted territory,” but allowed the trade secret claim to proceed. The Court also upheld PleasrDAO’s claim for recovery of the physical album.

IP Implications

Many people consider the ruling a new frontier in intellectual property protection, creating the possibility that artistic works, when tightly controlled, can be treated as trade secrets. This case may hold implications for how creators structure intellectual property strategies. If trade secrets may be used as an alternative to copyright, creators may seek to protect unreleased works as trade secrets, if secrecy itself is the core source of the works’ value. We may see business models that include limited releases and controlled access, or other cases arising with trade secret claims.

Where Consumer Surveys Fit In

In the U.S., when courts evaluate issues of consumer perception, such as the likelihood of confusion between two trademarks or whether advertising made misleading statements, the parties often turn to consumer surveys.

IMS Legal Strategies designs and conducts reliable consumer research for use in trade secret, trademark, and false advertising cases, as well as supporting that research with expert testimony. We help courts and juries understand how consumers perceive advertising statements, origins of products, and other intellectual property issues. While the Wu-Tang Clan case may be an outlier, it offers a roadmap for how exclusivity and secrecy can transform artistic works into protectable trade secrets.

If your business is facing a complex IP dispute that could use reliable measures of consumer perception, our experts can help. Contact IMS Legal Strategies.

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Rankings of debt consolidation companies come under review by the NAD. How might regulators and consumers use consumer surveys if a dispute arose?

Reviews Are Really Ads

The National Advertising Division (NAD) of the BBB National Programs conducted a routine inquiry into debt consolidation companies that appeared on TrustedCompanyReviews.com, operated by EIA Marketing. TrustedCompanyReviews.com is a platform for reviews of products and services, claiming to use a proprietary evaluation system that combines expert analysis with consumer experience. It integrates reviews from TrustPilot, a strictly consumer-driven website, with expert analysis.

The NAD reviewed EIA’s disclosure practices for affiliate marketing partners offering debt consolidation services. Debt consolidation is a segment of the financial services industry that offers individuals a way to merge debts into a single loan or payment plan with a lower interest rate. The market for this service is estimated to be $20 billion in 2024, and is expected to grow to $32 billion in 2033. As more consumers seek the “best” debt consolidation online, issues related to truth in advertising may arise.

NAD Inquiry

The NAD reviewed whether the format of the advertising reasonably communicated that the rankings on TrustedCompanyReviews.com were advertisements for affiliate partners. Its chief concern was that a disclosure was at the top of the website and was then hidden in hover-over text and pop-up ads. The disclosure read, “The listings featured on this site are from companies from which this site receives compensation. This influences where, how, and in what order such listings appear on this site.” 

The NAD recommended that TrustedCompanyReviews.com:

• Identify the companies from which it receives commissions.
• Update and revise the online disclosure so that it is viewable at the top and bottom of every page and makes clear that TrustedCompanyReviews receives commissions from affiliate partners in its reviews.  The NAD also recommended that the site disclose that the reviews, rankings, and product information of its affiliates constitute advertising.
• Avoid the pop-up advertising and floating text, or otherwise ensure that it does not obscure the disclosure revised by NAD’s recommendation to make clear what product information is advertising; and
• Make clear that while it makes commissions from links to its affiliates, it is not paid to publish content and does not permit its affiliates – or any third party – to control or otherwise approve any of its content.

EIA Marketing stated that it disagreed with the NAD’s characterizations, but would comply with recommendations.

Online Reviews Under Scrutiny

Consumers increasingly make purchase decisions based on online reviews. Online platforms, such as TrustPilot, Google, Yelp, and others, are frequently accessed by users on smartphones and other devices, creating an even greater need for clear and conspicuous disclosures to adhere to new consumer protection regulations. The NAD has online review platforms and practices on its radar. This decision shows that the format of the disclosure is as important in affiliate marketing as its existence.

Consumer Surveys Assist Regulators in Enforcing New Consumer Protections

Even without a direct statement, the format of content can suggest objectivity. Without disclosing an affiliate relationship, brands may come under scrutiny from advertising regulators and consumers. False and deceptive advertising disputes may arise from disclosures that fail to notify consumers of the advertiser’s relationship with another company, and consumers rely on these reviews to make purchasing decisions.

Parties can measure how a reasonable person would interpret a disclosure, and whether that disclosure is misleading, using consumer perception surveys. These surveys help regulators and litigators provide evidence of how consumers understand and rely on disclosure communications. Another type of survey commonly used in false or deceptive advertising cases is a materiality survey, which measures the extent to which a communication influences purchasing decisions.

The Real Truth in Online Review Advertising

The recent NAD decision in the TrustedCompanyReviews case reminds online review platforms that disclosures are under scrutiny, and that brands must communicate transparently to avoid costly disputes. If you are involved in a false advertising matter, contact MMR Strategy Group, an IMS Legal Strategies company.

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A coexistence agreement between Boston University and Baylor University unravels and rolls into court as a trademark dispute. How might consumer surveys dispel this logo rivalry?

BU vs. BU

Baylor University is located in Waco, Texas, and has used a stylized interlocking BU trademark since 1912.  Boston University is located in Boston and has historically used its initials, BU, side by side. In 1987, Baylor University filed with the United States Patent and Trademark Office for protection of its interlocking BU logo. Boston University opposed the attempt. In 1988, the two schools reached a coexistence agreement, allowing both universities to use “BU,” but not in exactly the same way.

In 2018, Baylor discovered Boston’s use of an interlocking “BU” on three hat styles sold through the campus spirit store. Baylor formally objected in 2021, but the interlocking BU usage in Boston expanded to more items, including club sports apparel. Thirty years after the coexistence agreement, Baylor filed suit in Waco, Texas, claiming Boston University was using an identical interlocking design on merchandise, promotions, and online platforms, violating the terms of the original agreement. Baylor’s suit alleged trademark infringement, unfair competition, and false designation of origin, arguing that Boston University’s branding creates consumer confusion, particularly in athletics and apparel markets.

High-Stakes Higher Education Logo Licensing

Universities earn substantial revenue from licensing their logos. Licensing apparel alone is a $4.6 billion industry, and protection of these logos helps safeguard critical income streams. University apparel is sold across states, making consumer confusion a larger concern. When market competition is high, rivalry can reach the courtroom.

Will Consumer Surveys Get Called Into Play?

Consumer perception may be central to this dispute, and when perception is at issue, consumer surveys are frequently called into play. In a trademark dispute, either party may retain a consumer survey expert and conduct consumer survey research. Likelihood of confusion surveys are often used as evidence in matters like this, to measure consumer confusion as to origin and affiliation of similar marks. Additionally, a secondary meaning survey could be used to measure whether an interlocking BU is distinctively associated with Baylor.

While the universities’ color schemes differ—green and gold for Baylor, red and white for Boston—trademark infringement and consumer confusion may still exist as to the sources of products bearing similar interlocking marks. When legacy trademark agreements clash with modern branding strategies, consumer surveys can help. For defensible surveys that stand up in court, contact IMS Legal Strategies.

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The BBB National Programs, National Advertising Division released the 2025 Influencer Trust Index. Are marketers being unduly influenced by the allure of influencer marketing? And how might survey research be used to cut through online noise?

Consumer Trust Index

Influencer marketing is one of the fastest-growing sectors in advertising, valued at nearly 24 billion domestically. According to the National Advertising Division (NAD), 82.7% of U.S. marketers used influencers in their campaigns last year. But with growth comes increased scrutiny—by regulators, competitors, and consumers themselves. The BBB National Programs Influencer Trust Index: Consumer Insights 2025 is a report based on a U.S survey by The Benchmarking Company, measuring how consumers perceive influencer campaigns. How much do consumers trust influencer advertising? Consumer survey research is key.

Consumer Survey Methodology

The national survey of U.S. consumers assessed two main questions: (1) whether consumers want greater transparency in influencer marketing, and (2) whether an NAD-backed certification for influencers could boost trust and support truthful advertising.

The survey covered the following topics:

• Consumer trust in influencers
• Expectations around disclosure of brand relationships and compensation
• Types of influencers consumers follow
• Daily time spent on social media platforms

The survey included 26 questions and was executed in a three-day period in February 2025, with a survey universe of 3,720 U.S. consumers ages 18-65. The respondent pool consisted of 235 men, 5 non-binary individuals, and 3,484 women. Social media usage was nearly universal among participants, with only 2.4% reporting they do not use social media platforms daily. Among platforms, Facebook (86%) had the highest usage, followed by Instagram (75%), YouTube (68%), Pinterest (48%), TikTok (45%), Reddit (30%), and LinkedIn (29%).

IMS Legal Strategies was not involved in this research and has not evaluated its reliability.

Consumer Trust Revealed

The findings of the Consumer Trust survey included:

• 87% of consumers reported trusting company advertisements; only 74% said they trust influencer ads.
• 70% of consumers expressed negative feelings toward influencers who received compensation or free products but failed to disclose the relationship.
• 70% of consumers said knowing that an influencer is in a paid partnership does not make the influencer less trustworthy.

This data suggests that, consistent with NAD and FTC guidance and rulings, consumers appreciate transparency, and that the lack of proper disclosures drives distrust.

Measure Consumer Reactions to Disclosures

Some of the NAD’s recent rulings regarding influencer marketing held that when influencers have disclosed sponsorships inappropriately, or failed to disclose them at all, brands must discontinue claims or change marketing strategies.  Consumer surveys can measure how consumers perceive disclosures provided only in hashtags, like “#ad” or “#sponsored,” and related questions. This evidence can be persuasive in NAD, court, or regulatory proceedings.

If influencers and brands want to make comparative claims, consumer surveys can also show how audiences interpret those claims. Survey research data and insights can show whether consumer expectations are unmet or marketing claims are misleading, which can result in a costly challenge.

Defensible Surveys Create Credibility Enhancing Claims

Courts and regulators scrutinize survey design closely, and flawed research will (hopefully) not withstand regulatory challenges. Proper methodology, sampling, controls make sure surveys are useful as evidence in regulatory or legal proceedings.

In advertising litigation, offering properly conducted research can be the difference between findings of compliance and findings of liability. Contact IMS Legal Strategies for reliable false or deceptive advertising research.

IMS Legal Strategies was not involved in this research and has not evaluated its reliability. This report is based only on publicly available facts.  Also, we understand this to be a survey about influencers generically, rather than any individual influencer, marketing campaign, or claim.

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Xai claims trademark infringement by Elon Musk’s xAI. How might consumer surveys clear the matrix of alleged consumer confusion?

Gaming Assets

Ex Populus, Inc.’s Xai is a trademark for a gaming network built on Ethereum, a cryptocurrency. Xai is designed specifically for video games; it makes transactions of video game assets faster, cheaper, and more flexible, so developers can build more complex and scalable Web3 games. Backed by Ex Populus, Xai also has its own token ($XAI) and a growing family of blockchain-powered games.

Certain types of video games involve financial transactions because players buy, sell, and trade digital items including skins, weapons, or other items. Transactions were traditionally tracked on a company’s servers, but blockchain gaming means transactions are publicly recorded on a ledger, so players can own their digital assets and even trade them outside the game. This legitimizes gaming economies, making them more transparent and valuable, like having a real marketplace built into the game world.

Elon Musk, technology entrepreneur, created the artificial intelligence company xAI (or X.AI Corp.) in 2023. Its main product is Grok, a chatbot tool whose stated mission is to “understand the true nature of the universe.”  xAI emphasizes that its outputs “advance human comprehension and capabilities.”

Etheric Dispute Grounded in Courts

In August 2025, Ex Populus filed a federal lawsuit against Musk’s xAI, alleging that the Musk company was infringing on its registered trademark in XAI. To make matters worse for Musk, the lawsuit said, Musk announced in 2025 that he would use xAI to “start an AI game studio to make games great again.” This kicked off what the lawsuit said was rampant confusion in the marketplace, with consumers and video game industry publications confusing the two companies and social media users tagging both companies in posts intended for only one company.

The complaint says xAI knew of the potential for confusion, as the U.S. Patent and Trademark Office suspended many of its trademark applications for potential confusion with the Ex Populus XAI mark.  Rather than change its name or work out a compromise, the lawsuit says, Musk’s company “attempted to bully Plaintiff into relinquishing its superior trademark rights.” The claim also alleges that the negative publicity around xAI’s Grok chatbot, including incidents where it was pulled offline after making racist and antisemitic comments, damaged the Ex Populus XAI mark by association.

Clearing Consumer Confusion

A central issue in this complaint is whether consumers are confusing Ex Populus with xAI because of the similarity of the companies’ marks, or believe they’re associated in some way. Consumer survey research can help clear these issues.

Most importantly, this dispute could benefit from one or more likelihood of confusion surveys, which could measure whether consumers mistakenly associate the two marks. If Musk has made xAI well known or famous, a confusion survey in this case could be a reverse confusion survey, meaning that it tests whether consumers in the market for services from Xai, the senior user, incorrectly believe those services come from Musk’s xAI. (A forward confusion survey would test the opposite—whether consumers believe Musk’s xAI comes from Ex Populus.) In addition, because Ex Populus alleges reputational harm from association with Musk, Grok, and xAI, a survey could measure whether the XAI mark has been diluted by blurring.

The Trademark Case of 2025 Requires Reliable Survey Research

Courts and litigators heavily scrutinize evidence in complex and high-profile trademark infringement matters. To be admissible and persuasive, trademark surveys typically must represent the relevant consumer population (e.g., gamers and AI users in Xai’s case), include controls if they are intended to demonstrate a significant likelihood of confusion, be unbiased in design, and ask questions that reflect how consumers actually encounter the marks in the marketplace. Surveys that miss these points can mean game over for either party.

Millions of impressions and billions of dollars are at stake in this trademark infringement case. Where stakes are high, reliable consumer surveys could be a winning play. Reach out to IMS Legal Strategies to discuss your case.

This post was written with 100% public information.

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Fairlife Milk is accused of false and deceptive advertising again. How might litigators use consumer survey research to milk insights?

Moo-ve Over, Low Sugar; Make Way for Protein

Protein-enriched foods and drinks are a rapidly growing business in the United States, and consumers are willing to pay more for more protein. Estimates for the high-protein food sector reached 66.8 billion in 2023 and are projected to reach over USD 117 billion by 2034. Consumers’ interest in this market is driven by the purported benefits of consuming high-protein diets for weight management, and interest in fitness and wellness. In social media, high-protein food is a veritable craze. Consumer product brands of all sorts are adding protein and promoting it, and 71 percent of consumers were looking to increase their protein consumption in 2024.

With such a large percentage of consumers looking for more protein, products with added protein have a market advantage. Fairlife Milk is not only a high-protein milk alternative, but is also advertised as cruelty-free and sustainable.

Fairlife Milk

Fairlife LLC was founded in 2012 through a partnership between Fair Oaks Farm and the Coca-Cola Company.  Fairlife Milk is a filtered dairy product that separates milk into basic components: water, protein, vitamins, minerals, lactose, and fat. The filtration process results in a milk that is higher in protein and lower in sugar than unaltered milk, and lactose-free.

Coca-Cola purchased full ownership of Fairlife in 2020, marketing the products as not only high-protein and healthy, but also sustainably produced. This reaches ethically motivated consumers as well the health conscious, justifying the brand’s higher price. Fairlife produces related products, including protein shakes, creamers, and other dairy-based high-protein beverages, and is a billion-dollar brand.

Alleged Unfair Animal Treatment at Fairlife

An undercover investigation by the animal rights group Animal Recovery Mission (ARM) released video footage from Fair Oaks Farms, Fairlife’s primary suppliers, showing workers neglecting and physically mistreating cows and calves. This contradicted Fairlife’s marketing commitment to animal welfare, humane treatment, and sustainable farming practices. As a result, many retailers pulled Fairlife products and consumers filed false and deceptive advertising suits, claiming they would not have paid the higher price for Fairlife products if they had known the truth about animal welfare at Fair Oaks Farms. The lawsuits were later consolidated into a class action (In re Fairlife Milk Products Marketing and Sales Practices Litigation), naming The Coca-Cola Company, Fairlife, LLC, and Fair Oaks Farms as defendants.

Exposing the Dispute

The plaintiffs in the class action alleged that Fairlife’s representations about treating cows humanely induced consumers to pay a price premium for products they believed were ethically sourced. The parties reached a $21 million settlement in 2022, but in 2024, an Arizona based nonprofit investigated two other Fairlife suppliers, Rainbow Valley Dairy and Butterfield Dairy, and the report uncovered allegations of criminal-level animal cruelty, as well as poisoning of water supplies. This led to another class-action lawsuit, In re Fairlife Milk Products Marketing and Sales Practices Litigation

With these issues going to courts, judges and parties may consider how the advertising claims of animal welfare and sustainable production influenced consumer purchasing decisions. Consumers allege that Fairlife engaged in false advertising under federal and state consumer protection laws; that is, Fairlife’s marketing suggested its cows were treated humanely and sustainably, despite evidence to the contrary. The lawsuits allege that these claims misled consumers into believing Fairlife’s products were made with higher ethical standards, and that this led consumers to pay more than they otherwise would have. Fairlife argued that its claims were general and not meant as enforceable guarantees, and that consumers may have purchased products for nutritional reasons unrelated to sustainability.

Milking the Most from Consumer Survey Research

False advertising cases hinge largely on how consumers interpret marketing messages, and whether those interpretations drive purchasing behavior. Consumer survey research is commonly used in complex class-action cases like the Fairlife class action. These surveys may ask a representative sample of consumers what messages they took away from the disputed advertisements. For example, a survey could test whether consumers believed Fairlife’s products came from humanely treated cows, based on packaging and advertising. If a large percentage of consumers interpreted the claims as guarantees of animal welfare, this could support the plaintiffs’ case.  A survey might also measure the importance of disputed claims, which can provide evidence for a potential damages calculation.

False Advertising Class Action Advantage of Consumer Surveys

Courts increasingly look to consumer survey evidence to arrive at objective, data-driven estimates that may affect a determination regarding damages. This makes high-quality, methodologically sound research an important source of evidence in false advertising disputes. As consumers demand transparency and authenticity, and as regulators and courts scrutinize marketing practices more closely, companies must recognize that misleading claims not only erode trust but can also lead to costly litigation.

This post was written with 100% public information.

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As subscription businesses grow, so has scrutiny of practices relating to opting in and out of subscriptions. Regulators, including the FTC, have issued specific guidance that regulates the subscription economy. This type of regulation was recently tested in a case that the Attorney General of Pennsylvania brought against a coin manufacturer and distributor, American Mint. Were they looking to cash in on subscription business models at the expense of consumers?

Negative Option Marketing: A Poor Choice for Coin Collection

The Pennsylvania Attorney General’s Office received over 200 complaints regarding negative option marketing practices from American Mint, a collectibles company near Harrisburg, PA.  An investigation revealed that American Mint used deceptive subscription practices, enrolling customers into recurring “negative option” plans without explicit consent. Under a “negative option” plan, a customer’s silence or failure to act is seen as agreement to make future purchases.

The Attorney General’s office alleged that American Mint violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law by signing customers up for subscriptions to coins without giving them a way to opt out of the subscription. It eventually reached an outcome that included a $750,000 damages payment, and required American Mint to discharge all consumer debts and make considerable changes to the company’s policies.

Consumer Surveys in Legal and Regulatory Disputes

When litigators or regulators need to demonstrate the presence or extent of misleading information in an ad, they can turn to consumer surveys. Consumer perception surveys may evaluate how consumers interpret marketing claims, promotional offers, or online interfaces; whether they understand terms like “free,” “trial,” or “limited offer”; whether their understanding impacted their purchasing decisions; or other consumer perceptions. These measures can be used in regulatory inquiries and also help companies develop compliant, transparent, and consumer-friendly marketing practices.

Well-designed surveys provide evidence about consumer understanding, perception, and behavior, and may be central to disputes involving advertising, labeling, and subscription models. Consumer surveys can help regulators demonstrate that a company’s communications were deceptive, even if those communications included disclosures or fine print.

MMR Strategy Group, an IMS Legal Strategies Company, is trusted by regulators to design and conduct consumer survey research that support both private sector and public enforcement.

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The EU Intellectual Property Office (EUIPO) granted German spirits giant Mast-Jägermeister SE a victory in a trademark dispute with Italian drinks producer Polini Group. Polini Group attempted to register their brand Alten Kräuterfrau. Jägermeister objected, arguing that the brand mimicked the its distinctive world-famous herbal liqueur. How might have consumer surveys been used, had this dispute had taken place in the United States?

Origins of Dispute

The global market for herbal liqueurs is valued at over $4 billion annually, with Jägermeister leading the category worldwide. In the U.S., Jägermeister ranks among the top 10 imported liqueurs, with NielsenIQ reporting steady market share growth among millennial and Gen Z consumers who associate the brand with authenticity and nightlife culture. In 2024, Mast-Jägermeister SE reported sales of more than 120 million bottles worldwide, with Germany, the U.S., and the UK among its top markets.

In 2022, EUIPO initially dismissed Jägermeister’s protest, ruling that Alten Kräuterfrau’s branding was “visually and aurally dissimilar and conceptually similar to a low degree.” Jägermeister appealed the decision in 2025, and EUIPO reversed its decision, citing Jägermeister’s reputation and the risk that consumers could confuse the products if they were placed side by side on the same shelf. Limited conceptual similarity, combined with similar gothic-style fonts, color schemes, and configuration, were sufficient in this case to raise consumer confusion concerns.

How This Could Play Out in the U.S.: Likelihood of Confusion Surveys

While this dispute unfolded in Europe, had it arisen in the United States, a central question in litigation would be whether consumers are likely to be confused between Jägermeister and Alten Kräuterfrau. Where consumer confusion is at issue, U.S. courts often rely on likelihood of confusion surveys as evidence. Likelihood of confusion surveys typically ask a representative sample of consumers whether they believe the two products come from the same company or are affiliated or associated with each other.

While EUIPO emphasized brand reputation and conceptual similarity, a U.S. court may rely on survey evidence of consumer confusion. Likelihood of confusion surveys provide empirical evidence about consumer confusion by directly testing whether relevant consumers are confused. The results can prove important in trademark infringement cases.

IMS Legal Strategies survey experts design and conduct likelihood of confusion surveys that meet rigorous standards, to measure whether ordinary consumers perceive a connection between two trademarks. Our experts bring decades of experience testifying in federal and state courts, as well as administrative venues like the Trademark Trial and Appeal Board, on precisely these types of trademark disputes.

If your brand is involved in a dispute over trademark infringement, MMR Strategy Group, an IMS Legal Strategies company, survey experts can help. With decades of experience in likelihood of confusion, secondary meaning, and false advertising surveys, we bring scientific rigor and courtroom credibility to your case.

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