Under New Jersey Law, it violates the New Jersey Consumer Fraud Act to make an affirmative misrepresentation of fact as the seller attempted sale of a product. It does not matter that nobody has been misled but there is the capacity to mislead, which is the primary ingredient of consumer fraud.
There has been an investigation opened by the Federal Trade Commission which has been resolved recently with Kellogg. It appears as though Kellogg was misrepresenting the benefits of Frosted Mini-Wheats. Kellogg was making claims on their advertising that Frosted Mini-Wheats was “clinically shown to improve kids’ attentiveness by 20%”. The FTC opened an investigation because they claimed that it was false and violated federal law. It appears as though the complaint was based on a certain study which demonstrated the improved attentiveness of the children. According to the FTC news release, this was in fact not accurate. It appeared as though just under 11% had better attentiveness. It appears as though the commission approved to the administrative complaint and the proposed consent agreement. It is open to public comment for 30 days beginning and continuing through May 19, 2009.