Cold Supplement Maker Looks For A Year-Round Business, Decides On Sex Supplement

Like barbecues and weddings, colds have a season. When you’re in the business of selling zinc lozenges and over-the-counter medicine to help people deal with colds, what do you do when cold season is over? ProPhase Labs, the company that makes the terribly-named Cold-Eeze line of supplements and drugs, wants to get into the sex supplement business.

Supplements are a loosely-regulated business. Even when the substance that’s supposed to be inside actually is what’s claimed on the package, supplements just have to make promises to “promote” things like better digestion or hair growth or blood flow to the genitals.

Theodore Karkus, the CEO of the company that makes this product, ProPhase Labs, will not admit whether he has tried the supplement and found it effective, but the company marketing it, “TK Labs,” does happen to have his initials. I don’t know what that means. Whatever is in it, it’s better than selling illegal generic Viagra and claiming that it’s ground-up ants.

What we do know is that the company has made its (seasonal) fortune on selling zinc supplements meant to shorten colds, but some studies show that zinc lozenges don’t have any actual effect apart from the comfort of a tasty lozenge. Vitamin C may not be all that useful either.

Cold-Eeze CEO speaks about firm’s new male sex drive pill [Philadelphia Inquirer]

Feds Order Debt Relief Schemes To Cease Misleading Use Of Government Logos

Even though it’s incredibly easy to slap a government agency’s logo on your website, that doesn’t make it okay. Just ask the two debt relief companies that have been ordered to stop using Department of Education logos to mislead student loan borrowers.

In letters seen by Consumerist, lawyers for the Dept. of Education ordered two different debt relief operations to cease and desist using the agency’s name and image without authorization.

Both Atlanta-based Perfect Privacy LLC — operator of a debt relief business at SLprograms.org and other URLs — and San Diego’s The Student Loan Project run programs that promise relief — for a fee –to borrowers of federal student loans. They also both used official Education logos without permission, an apparent violation of the Lanham Act’s prohibition against false endorsement.

The letters warn both companies that they are under investigation for possible violation of a second federal law involving the misuse of government seals, which could result in fines and possible jail time.

In addition to unauthorized use of the Education name and logo, The Student Loan Project went further falsely implied a relationship with the government by using “.us” domain name for one of its sites (see image above), displaying the American flag on its webpage, and referencing the Department of Treasury when advertising its services.

The Dept. gave the companies until Feb. 4 to remove the improperly used seals and government references.

Acting Secretary of Education John B. King reminded students in a video post on Friday that the government and legitimate student loan servicers would never ask for fees in order to help manage debts.

“We’ve put these companies on notice that they may not misrepresent their relationship with the Department to trick students into paying for free services,” he said in the video.

Consumer advocates, including our colleagues at Consumers Union, applauded the DOE’s efforts on Friday, noting that millions of students are vulnerable to being “ripped off by shady debt relief companies.”

“[T]here’s no reason to pay for the kind of services being peddled by these companies when you can get assistance for free,” Suzanne Martindale, staff attorney for Consumers Union, said in a statement. “We’re encouraged that the Department is cracking down on these misleading marketing schemes and hope they will continue to aggressively enforce the law to stop debt relief scams.”

Some Merchandise From Closing Walmarts Will End Up For Sale On Amazon

The news that 154 Walmart stores would be closing in the United States was devastating to employees and to the communities left without grocery stores or pharmacies, but there’s one group of people who were delighted at the news. Bargain-hunters, sure, but especially the subset of bargain-hunters who resell their purchases online at a profit.

Yes, resellers engaging in retail arbitrage showed up at the clearance sales. Arbitrage is a very simple concept: it’s buying something in a retail store and selling it for more money elsewhere. Mobile apps and online venues like Amazon Marketplace have made it much easier, and now there’s a surprising number of people who make their living or a few extra bucks this way. Usually they scoop up items on sale or on clearance, or that are in demand somewhere, but the Walmart closings are a unique opportunity.

They stores where everything was first 50% off, then 75% off. While this means you could finally get a WebTV for fifty bucks, it also means that basic everyday items that people would pick up on Amazon are discounted too.

“Fulfilled by Amazon” means that the company stores items in their warehouses after sellers ship off their items in batches, and pricing apps let sellers caclulate how much an item will sell for nd whether they’ll make money after deducting Amazon’s fees.

The Wall Street Journal met one shopper in Michigan who said that he had spent $12,000 buying up clearance merchandise at a closing Walmart. He loaded up on pregnancy tests and condoms. Sure, he bought some electronics too, but the key was to buy things that would sell for a good price, and buy as many of them as possible.

Another seller purchased cameras and electric toothbrushes, planning to sell them for close to retail value when he got 50% off.

Wal-Mart Closures Bring Out the Amazon Sellers [WSJ]

FURTHER READING:
The Web’s Most Maniacal Bargain Hunters [WSJ]

Payment Processor Cutting Ties With DraftKings, FanDuel Amid Gambling Disputes

With the state officials in Nevada, New York, Illinois, and now Texas all saying they believe that daily fantasy sports [DFS] sites DraftKings and FanDuel are unlicensed gambling operations, a company that had processed payments for both of these sites has reported severed ties with the industry.

The New York Times reports that payment processor Vantiv has notified its DFS clients — which include both of the aforementioned sites — that, starting Feb. 29 it will “suspend all processing for payment transactions” with these companies.

A letter obtained by the Times cites the recent conclusions of various attorneys general that DraftKings and FanDuel violate their states’ anti-gambling laws.

“Although in recent weeks DFS operators have raised numerous arguments to the contrary, to date those arguments have been unsuccessful and/or rejected,” reads the letter.

Like a lot of online businesses, DraftKings and FanDuel use third-party payment processors to handle transactions with its users. It’s likely that both sites used other processors in addition to Vantiv, but given the sheer volume of deposits and payments involved in running a DFS operation, it could be crippling for the sites to have to shift Vantiv’s workload onto another provider.

The Unlawful Internet Gambling Enforcement Act [UIGEA] of 2006 wasn’t a direct attack on gambling operations. Instead, it stifled the industry by forbidding financial businesses — including payment processors — from doing business with online gambling sites.

Thus, while DraftKings and FanDuel may have the luxury and legal team to mount a defense of their operations — which they contend are not gambling, but are instead games of skill for which people win cash prizes — Vantiv appears to be taking the cautious route and stepping aside, at least until the matter is settled.

And the Vantiv letter does include a statement of support for the DFS industry, saying the processor “will continue to work with stakeholders for a long-term solution to the ongoing DFS controversy. When there is better clarity and long-term certainty around the regulatory and judicial landscape related to DFS, Vantiv may decide to resume processing these types of payment transactions.”

The UIGEA does include a carve-out specifically for fantasy sports gaming, but it also leaves it open for individual states to decide whether or not such games are legal within their borders. Before the recent controversy, DFS were not allowed to operate in a handful of states — Arizona, Washington, Iowa, Louisiana, and Montana — because of local laws.

Amid a rash of stories about insider information-sharing allegations at DraftKings and FanDuel in the fall of 2015, Nevada was the first of the new batch of states to declare DFS sites illegal, when state gaming regulators determined that the sites were effectively operating as unlicensed sports books.

The attorney general for New York soon followed ordered to block both sites from operating in the state. That matter is now tied up in the legal system while DraftKings and FanDuel continue to accept payments in the state. However, following the attorney general’s initial decision, Vantiv did say it would be unable to process payments for New York state DFS players.

More recently, the attorneys general for both Illinois and Texas have published opinions stating that they believe DFS violates their respective state laws, but neither has taken any action to shut down operations.

White Castle Takes A Spot On The Cage-Free Eggs Bandwagon, Promises To Make The Switch By 2025

The cage-free eggs bandwagon is so crowded right about now, we might as well call it a “bandsemitruck.” Joining its restaurant pals and other food companies in promising to use only eggs from hens that aren’t caged is White Castle, which says it’ll make the transition by 2025.

The company announced Friday that any eggs it sources for its 400 restaurants in 13 states will come from cage-free hens by 2025. The 95-year-old chain also owns and operates its own meat-processing plants, bakeries, and frozen-food processing plants.

White Castle says it’s been reviewing the issue for months with the Humane Society.

“Switching to cage-free eggs is something we’ve seriously considered since we began looking at the issue, and today’s announcement represents us being responsive to customer preferences,” said White Castle VP Jamie Richardson. “We’re proud to serve our guests food that both comes at a value and aligns with their values.”

Recently, Subway, Dunkin’ Donuts, McDonald’s, Taco Bell, and Panera Bread have made similar announcements, as well as a slew of food companies. We’ve set a calendar reminder (for 2020 for some and 2025 for others, depending on their announcements) to check on their progress in the future. We’ll let you know in a few years how things are going.

Kroger Wants Alcohol Companies To Pick Up The Tab For Its New Booze Organization Plan

After decades of sticking with its organization system in stores, Kroger has a new plan for how it decides which booze brands go on which shelf, how prominently each one is displayed. Instead of relying on “category captains” from big names like Anheuser-Busch InBev and Diageo to suggest how wine, liquor, and beer are organized in stores, Kroger wants alcohol companies to pay a privately held distributor to make those display decisions.

Kroger introduced the plan last year, which would have a company called Southern Wine & Spirits doing the job beer, wine, and liquor companies used to do: overseeing how much display brands get in the aisle of the chain’s more than 2,600 stores in 29 states, reports The Wall Street Journal.

It asks for alcohol companies to pay Southern for the service, voluntarily, instead of Kroger footing the bill.

Kroger likes the idea because it can rearrange store shelves more frequently, depending on what trend consumers have landed on or what kinds of seasonal booze are popular. Right now, the company makes these changes up to twice a year, but it’s an inconsistent system across all those stores.

“Our goal is to better respond to customer needs and more quickly bring new, innovative adult beverages to market,” said Kroger spokesman Keith Dailey.

But alcohol companies are banding together against the plan, predictably, as it takes the power away from alcohol manufacturers and puts it in the hands of another company. Industry trade associations representing liquor, wine, and beer, as well as alcohol-distributor groups, have sent letters to federal regulators questioning the legality of Kroger’s plan. The Alcohol and Tobacco Tax and Trade Bureau said it is reviewing the matter.

Craft brewers and other small booze businesses are a bit worried about the plan as well, with some calling it a “pay-to-play” system. The new plan would cut into their margins, and if they can’t afford to pay Southern, their beers and spirits might never see the front of the shelf.

A Southern spokesman said the fees would be voluntary, and that manufacturers who don’t pay into the program wouldn’t be “adversely affected.”

In order for the program to gain approval, the Alcohol and Tobacco Tax and Trade Bureau has to give it the okay, and Kroger and Southern will have to make sure everything complies with state laws. Which, as we all know, can be very complicated when it comes to selling booze.

Kroger Plans to Upend How it Organizes Booze in Stores [Wall Street Journal]

Longshoremen Walk Off The Job At New York City Area Ports

Earlier today, work at cargo ports in the New York and New Jersey area abruptly stopped, and dockworkers walked off the job. While trucks line up outside of the ports to deliver and pick up cargo containers, no one is there to move them around. The dispute involves “hiring practices,” specifically, control of the licenses that allow dockworkers and their employers to work on the ports.

According to the New York Times, workers have apparently walked off to protest the actions of Waterfront Commission of New York Harbor, which performs background checks on new dockworkers and companies. A representative of their union explained to a local radio station that the actions of the Waterfront Commission and its requirements for those licenses were preventing new workers from being hired, and the port from being run efficiently. The port of Red Hook in Brooklyn remains open, but others shut down.

“…Both sides [the union and the cargo companies] have been fighting the Waterfront Commission, especially in the last five years, over the right to bring new workers on, the right to operate their ports the way they think they should be operated,” International Longshoremen’s Association spokesman Jin McNamara explained to radio station WINS.

Any problems at cargo ports can have far-reaching effects on the entire world’s economy. Last year, the unloading of cargo at ports up and down the West Coast slowed down significantly, affecting everything from the fortunes of closeout stores to the availability of French fries in Venezuela to the assembly of Japanese companies’ cars in the United States.

New York-Area Ports Shut Down as Longshoremen Walk Off the Job [New York Times]

Uber Cuts Some New York City Fares By 15%

Less than a month after Uber slashed its prices in 100 cities around the country, the ride-hailing service implemented similar cuts in New York City. 

The New York Post reports that riders in NYC can now expect to spend about 15% less on their trips starting Friday.

The cuts, which apply to the UberX and XL services, are Uber’s attempt to increase ridership, while undercutting competition from Lyft and city cab services.

Under the plan, UberX base fares will go from $3 to $2.55, and the minimum fare for the service will drop from $8 to $7.

Additionally, the price per mile rate will drop to $1.75 from $2.15, and the per minute rate for these rides will go from $0.40 to $0.35.

As with Uber’s previously announced price slashing, the discounts aren’t expected to be longterm.

Still, the company expects ridership to jump during the discount period, citing a similar program in 2014 that resulted in the time drivers spend in cars without a fare dropping by 42%.

Some drivers tell the NYPost that they’re happy about the cuts, despite the fact they could be making less during their trips.

“We need to do something to increase the money, go ahead and do it,” one driver said.

Uber cuts rates in escalating NYC cab wars [New York Post]

Walmart Ordered To Pay $31 Million For Retaliating Against Pharmacist Whistleblower

<img src="http://ift.tt/1QxDecn; alt="This image has nothing to do with the lawsuit, but it does help us maintain the rogue spirit of the short-lived Walmart.horse.” width=”680″ height=”503″ class=”size-full wp-image-10198042″ /> This image has nothing to do with the lawsuit, but it does help us maintain the rogue spirit of the short-lived Walmart.horse.A federal jury in New Hampshire has slapped the nation’s largest retailer with more than $31 million in penalties for unlawful retaliation and gender bias against a former pharmacist who blew the whistle on safety concerns involving her co-workers.

The lawsuit, originally filed in 2014, claimed that Walmart “negligently trained and supervised the pharmacy staff” at the plaintiff’s store in the New Hampshire town of Seabrook. The former pharmacist alleged that she was fired in Nov. 2012 — after 18 years on the job — not just for blowing the whistle on potentially unsafe practices and privacy violations, but because of her gender and her “serious medical condition.”

In the two years leading up to her dismissal — which Walmart blamed on the pharmacist losing her key to the pharmacy — the plaintiff said that 13 different pharmacy employees either “quit, transferred, or were fired,” and that Walmart either left these positions vacant or replaced these workers with “new inexperienced employees.”

“This constant turnover, understaffing, and inexperienced staff created a serious threat to the safety of patients and resulted in regulatory violations regarding the safe practice of pharmacy,” reads the complaint.

In 2011, believing that “too many mistakes were occurring” in the pharmacy and that the lack of properly trained staff presented a public health risk, the plaintiff contacted the Chief Compliance Investigator of the New Hampshire Board of Pharmacy.

Then in Aug. 2012, the plaintiff brought her concerns to the Walmart District Manager for her area but “nothing was done to correct the situation.”

That same month, she claims that a “serious dispensing error occurred,” which her boss initially tried to blame on the plaintiff, though she was ultimately found to not be responsible for the mistake.

According to the plaintiff, the stress of the job, and the lack of support from Walmart, got so bad that she had lost 18 pounds, was having headaches, gastrointestinal symptoms, anxiety, and depression. She says she needed prescription medication to sleep at night.

In Sept. 2012, her doctor advised she take a two-week medical leave from the store. When she returned, she learned that a pharmacy technician had not only accessed her private health information, but had then told others at the pharmacy about the plaintiff’s use of prescription sleep meds.

Given that this unauthorized disclosure of private medical data is a violation of the law, the plaintiff took her concerns about the incident to the District Manager.

But rather than fire or transfer the worker who had illegally accessed the plaintiff’s file, the District Manager reassigned that employee to the loss prevention department in the same store.

The plaintiff does acknowledge that she temporarily misplaced her pharmacy key in Nov. 2012 when she was in the process of moving to a new home, but she also maintains that she followed the proper protocol and immediately reported the missing key.

In court, the plaintiff showed that other male pharmacy employees had similarly lost their keys, but they had not been fired for the error. Rather, she claims that company’s “Coaching for Improvement” policy is to give employees who commit a serious violation a warning in the form of a “Decision-Making Day.”

During the course of the nearly two-year lawsuit, the plaintiff has dropped some of the allegations against Walmart. In Nov. 2015, the retailer asked the court to grant summary judgment, hoping it would dismiss additional allegations. But in the end, the court allowed the case to go to trial on multiple counts of discrimination and one count each of retaliation and wrongful termination.

The matter finally went before a jury this month, and yesterday they sided with the plaintiff [PDF].

The jury concluded that Walmart had discriminated against the plaintiff based on her gender — a violation of both the Civil Rights Act and New Hampshire state law. The jury also agreed that Walmart had retaliated against the plaintiff, not for her two-week medical leave but because of her attempts to blow the whistle on unsafe conditions at the pharmacy. So it should be no surprise that the jury believed that Walmart was in the wrong for firing the plaintiff.

In terms of damages, the jury awarded her $164,093 in back pay, another $558,392.87 in front pay, $500,000 in compensatory damages, and $15 million in punitive damages each for the federal and state-level discrimination claims.

In total, Walmart is on the hook for around $31.22 million… which is less than .03% of the $117 billion in revenue brought in in the third quarter of 2015. So of course the company — which spent more than $2 million and five years fighting a $7,000 safety fine for a worker who was trampled to death on Black Friday — has said it is going to appeal the verdict.

How To Avoid Becoming A Victim Of A Super Bowl Ticketing Scam

Whenever there’s a widely publicized event bringing in people from all over like the Super Bowl, you better believe there will be scammers lurking in the shadows, waiting to prey on those unfortunate souls who desperately want to score a ticket to join the fun. This year’s big game is no different, but there are some things football fans can do to avoid becoming a victim to a scam.

California Attorney General Kamala D. Harris’ office issued a warning to residents trying to get tickets to Super Bowl 50, which will take place on Feb. 7 in Santa Clara. Because demand for the championship game between the Denver Broncos and Carolina Panthers far exceeds the supply, shucksters will undoubtedly try to take advantage of people by selling fake or stolen tickets.

Here’s what you should for so your dreams aren’t dashed on the big day (and you aren’t suddenly on the hook for that hotel and airfare you bought):

• Try to buy your tickets from official sources like NFL.com or other ticket providers who are authorized to sell tickets, like licensed ticket resellers.

• Use credit cards or a PayPal account when buying tickets online, so you can challenge the charge if the ticket sale is fraudulent. Watch out for sellers who ask for payment via a prepaid card or by wiring money. Only use sites that begin with “https” as that means the site is secure and your credit card and billing information will be protected from being intercepted by a third party.

• Do your research: check out the seller’s reputation by searching online for reviews, and look for any potential consumer complaints regarding prior scams. “I GOT FAKE TICKETS FROM X!!!” is a telltale sign that you should not be buying from that seller.

• When buying from a reseller, look into their refund policy and whether the reseller offers a guarantee regarding the authenticity and timely arrival of the tickets. Again, you don’t want to be left on the wrong side of the stadium doors on Super Bowl Sunday because your ticket never showed up.

• Watch out for below market value tickets — if it looks like the price is too good to be true, it probably is. The average ticket price for this year’s game right now is about $5,217, according to ticket price tracking site SeatGeek. The lowest price right now on that site is $3,254.

• Make sure all event information is correct, once the ticket has arrived, and keep an eye out for oddities like illegible text, uneven margins, or weird smudges — fake tickets often have the wrong information on them and may include a photocopied barcode.

• Don’t give your credit card information to a stranger based on an online classified ad. Otherwise you’ll be paying much more for that ticket than you intended. Meet sellers in a safe location like a police station if you’re paying them in person.

Chobani Can’t Run Ads Claiming Other Greek Yogurt Products Contain Bug Spray, Chlorine

A federal court has ordered the makers of Chobani Greek yogurt to stop running a series of new ads that claim similar products from Dannon and Yoplait contain insecticides and chlorine.

According to the Minneapolis Star-Tribune, U.S. District Court judge ruled today that General Mills’ Yoplait brand could be “irreparably harmed” by a Chobani ad which refers to the common preservative potassium sorbate as “bug spray.”

Judge David Hurd found that General Mills demonstrated that it could be “irreparably harmed” by Chobani’s ads and that the company would have a “substantial likelihood of success on the merits of its false advertising campaign.”

In his decision, Hurd wrote that, according to U.S. Department of Agriculture, “few substances have the kind of extensive, rigorous long-term testing that sorbic acid and its salts (like potassium sorbate) have had. It has been found to be nontoxic even in large quantities.”

General Mills sued [PDF] Chobani for false advertising earlier this month related to its new marketing strategy.

The ad campaign, which debuted Jan. 6, includes TV commercials, print advertisements in major newspapers, coupons, and a presence at fitness gyms that target other yogurt brands with similar 100-calorie options, including Yoplait and Dannon.

In the ad, Chobani notes that the Yoplait Greek-style yogurt contains the commonly used preservative potassium sorbate. But then the ads goes on to imply that this ingredient is actually a pesticide, saying it is “used to kill bugs.”

“The television commercial that leads the Chobani attack campaign goes so far to convey that, because Yoplait Greek 100 is laced with a pesticide, it is so dangerous and unfit to eat that consumers should discard it as garbage,” the suit states.

The TV spot prominently displays Yoplait Greek 100, with a woman examining the package. At this point a voiceover states, “Yoplait Greek 100 actually uses preservatives like potassium sorbate.”

The narration then continues, “Really?! That stuff is used to kill bugs!” During this exchange, the woman’s face is pinched in a look of disgust as she further examines the Yoplait container; she then flings the container into the garbage.

General Mills contended that Chobani falsely claims that Yoplait is “toxic” because it contains potassium sorbate, a fungicide-like preservative that prevents yeast and mold growth.

“General Mills is informed and believes that there is no scientific evidence that potassium sorbate is effective against insects,” the company said in the suit, noting that potassium sorbate is considered safe by multiple federal agencies, according to the lawsuit.

The suit also took issue with Chobani’s print and website advertisements for its 100-calorie yogurt. The print ads include references to “bad stuff” — preservatives — in General Mill’s Yoplait yogurt, while the Chobani website allegedly “falsely communicates that the potassium sorbate should be considered a ‘pesticide’ by consumers.”

General Mills claimed in the suit that it has spent more than $900 million in marketing and advertising for its Yoplait products in the past five years and that Chobani’s campaign could do irreversible damage to the brand.

“The offending ads are therefore both literally false by necessary implication and highly misleading,” the suit states. “Unless Chobani is immediately enjoined, the Chobani Attack Campaign will irreparably harm General Mills and the goodwill it has developed over several years.”

General Mills tells the Star Tribune that it is pleased with the court’s ruling.

“General Mills supports fair and vigorous competition between companies, but false advertising only misleads and harms consumers,” the company said in a statement.

Chobani released a statement shortly after the ruling was announced, saying it was “disappointed” by the decision, but would continue to “spread its message about the value of selecting natural ingredients.”

“This is not a marketing campaign, it’s a mindset campaign, and it outlines the difference between using only natural ingredients versus artificial ingredients,” Peter McGuinness, Chief Marketing and Brand Officer, Chobani, said in a statement. “We’re committed to continuing the conversation and it’s good to see big food companies like General Mills starting to remove artificial ingredients from some of their products, like their cereals. In the end, if we can give more people more information while helping other food companies make better food, everyone wins.”

General Mills’ lawsuit came less than a week after Dannon threatened to sue Chobani over claims that its Light & Fit product contains sucralose, an artificial sweetener processed with “added chlorine.”

Before Dannon could head to court, Chobani sued the company in New York federal court asking for a declaration that its claims don’t constitute false and deceptive advertising. Dannon promptly countersued.

In a separate ruling Hurd barred Chobani from running similar ads that targeted Dannon’s Light & Fit Greek yogurt, claiming the product contained sucralose, an artificial sweetener processed with “added chlorine.”

Judge bars Chobani ads critical of ingredients in Yoplait, Dannon yogurts [Star Tribune]

A List of Corporate Buzzwords From Pepsi’s Announcement Of Its Artisanal Cocktail Space

Do you have a hole in the heart that’s shaped like artisanal drinks made from a kola nut and peddled by a soda company that knows how to use all the coolest corporate buzzwords? You’re in luck! Pepsi is opening the country’s first “experimental kola bar, restaurant, lounge, and event space” in New York City. From the sound of the company’s press release, it’s where buzzwords go to die.

Even though we never knew our lives were missing an experimental kola bar, we can’t wait for immersive experiences as meticulously crafted as this press release quote:

“We wanted to create a modern hub for consumers to share social and immersive experiences that were anchored in the exploration of our cola’s artisanal craft and flavor,” shared Seth Kaufman, Chief Marketing Officer, PepsiCo North America Beverages. “The Kola House represents a new space for us to support our consumer-first approach to drive authenticity and innovation around our beverage offerings and ideals.”

So what does this all mean? Well, there will be “experimental and elemental themes honoring the kola nut” of course, by way of a cocktail curator who has an “unrivaled background in flavor chemistry” as the mastermind of the operation, with a “full artisanal menu” from an executive chef inspired by the kola nut.

For those of you playing at home, here’s the meangingless buzzword count from Pepsi’s artisanal press release:

• innovation/ innovative: 3
• concept: 1
• local: 2
• curator: 1
• curating: 1
• anchored: 1
• authenticity: 1
• artisanal 3
• ideal(s): 2
• multifaceted: 2
• portfolio: 4
• sustainable: 1
• global(ly): 4
• flagship: 5
• craft: 2
• space: 7
• social: 1
• immersive: 1
• transformative: 1
• hub: 1
• mastermind: 1
• experimental: 2
• drive X around y: 1
• development: 2
• moments: 2
• share: 3
• exploration: 2
• modular: 2
• collaboration: 2

1/3 Of American Adults Use Online Ad-Blockers, Few Publishers Try To Stop Them

If you’re one of the approximately 1/3 of American Internet users who employ an ad-blocker in your web browser, we don’t mind, because Consumerist doesn’t accept advertising. Other websites that do depend on ads for their income definitely do mind that customers are using ad-blockers, but they don’t really do anything to stop users. Why is that?

There are some notable exceptions to this. Sites’ strategies differ: on the mild end, there’s the gentle and unobtrusive nagging of the Guardian and Fark.

Other sites, like GQ, Forbes, and Yahoo Mail, are experimenting with locking content away until users turn off their ad-blocking extension.

Representatives of the Interactive Advertising Board, advertisers’ trade group, make compelling cases for why publishers should keep the users of ad-blockers from seeing their content, with the head of the IAB saying in a speech at an industry conference last week that users of ad-blockers are “stealing from publishers” and “operating a business model predicated on censorship of content.”

Yet, aside from the exceptions above, most sites aren’t doing much to stop us. One study showed that only 4% of sites are trying to block the blockers. A gentle reminder to disable the blockers on that site might be enough for some users to change, but locking up content keeps readers away.

Forbes found that 42% of users disabled their ad blockers to gain access to the site… but that means 58% simply closed the window or tab and walked away. (Appropriately, you’ll need to turn off your ad blocker to access that page.) While the ad industry is working behind the scenes to subvert ad-blocking extensions, it will probably remain rare for a while.

Why Most Websites Look the Other Way on Ad Blockers [Bloomberg News]

FURTHER READING:
Ad Blockers Will Prevent You From Seeing $22B Worth Of Unwanted Ads This Year
Adblock Plus: Internet Heroes Or Banner Ad Shakedown Artists?

Stanford Law Professor: T-Mobile’s ‘Binge On’ Violates Net Neutrality Rules

Last fall, T-Mobile introduced Binge On, an optional program that lets users stream certain video streams without counting the data against their monthly allotments. YouTube and others have accused the company of throttling data in order to make this happen, and a new report from Stanford University claims that T-Mo’s actions are in violation of federal “net neutrality” rules.

The FCC’s 2015 Open Internet Order includes the so-called net neutrality guidelines, which prohibit broadband providers (wireline and wireless) from either throttling or prioritizing data based on its source or the type of content.

In a report [PDF] released this morning, Prof. Barbara van Schewick of Stanford Law School argues that Binge On violates this core neutrality tenet.

“By exempting Binge On video from using customers’ data plans, T-Mobile is favoring video from the providers it adds to Binge On over other video,” writes van Schewick.

T-Mobile has maintained that Binge On does not violate the neutrality rules because participating providers do not pay to be part of the program. But because Binge On does have the ability to downgrade video streams, participating services must work with T-Mobile to meet certain technical requirements.

But this requirement, contends van Schewick, is significant enough to be discriminatory.

“[T]he technical requirements published on T-Mobile’s website are substantial,” she writes. “They categorically exclude providers that use the User Datagram Protocol (UDP), making it impossible for innovative providers such as YouTube to join. They discriminate against providers that use encryption, a practice that is becoming the industry standard.”

The professor acknowledges that some providers “can join easily,” but claims that a “significant number” will need to “invest time and resources to adapt their service to T-Mobile’s systems. The smaller the provider, the longer it will likely take for T-Mobile to get to it.”

The FCC has yet to make a determination on whether the practice of “zero-rating” — the notion of not charging for data from certain providers — violates the neutrality rules. However, van Schewick is clearly of the mind that such policies unfairly favor certain providers over others.

“Providers in Binge On enjoy a competitive advantage, not based on merit but simply because T-Mobile added them to its program,” she argues. “Video creators are also more likely to use Binge On providers over other platforms for their video content, further distorting competition.”

Prof. van Schewick also calls out T-Mobile for marketing Binge On as the ability to “stream unlimited video.” Yes, you can watch all the Netflix you want on Binge On — but only if you haven’t maxed out your data plan on other content.

So if you watched a lot of YouTube videos in a month, or maybe watched a live feed of breaking news from CNN or some other broadcaster, and used up all of your available data, even your Binge On videos may be slowed down to barely usable 2G speeds.

And, by van Schewick’s calculations, it might not take much to reach that limit where all your content is throttled. She gives the example of a T-Mobile customer with a 3GB monthly plan. Watch around nine minutes of YouTube a day (around 4.5 hours total in a month), and van Schewick says you’d hit your monthly allotment. Even at 10GB/month of data, the report claims you’d hit your limit watching around 30 minutes per day of non-Binge On video.

“Most people use their mobile Internet connection for more than watching video, so the amount of video from other providers that customers can realistically watch in a month before they reach their cap is likely to be much lower,” notes Van Schewick.

What’s not clear in the report is whether those calculations are based on full-quality video streams from non-participating providers. T-Mobile has confirmed that it “optimizes” all video feeds for Binge On users, regardless of the video’s source.

This has been YouTube’s major gripe with T-Mo, alleging that T-Mobile should not be messing with streams that aren’t part of Binge On. For its part, T-Mobile has claimed that YouTube shouldn’t complain because the downgraded stream allows Binge On users to access more content using less data.

The report makes the point that if Binge On users are aware that their access to Netflix via the program could be negatively impacted by hitting the data cap using other non-Binge On services, they may deliberately avoid those non-participating content providers. Customers may also feel like they have to upgrade to a plan with more data.

“Describing Binge On as ‘unlimited’ video streaming might mislead consumers in a way that violates the FCC’s transparency rule,” writes van Schewick, referring to another section of the Open Internet Order that prohibits ISPs from making inaccurate statements about their service. “As the FCC has explained in the past, the transparency rule requires any public statements about the service to be accurate; it is not sufficient to describe a service accurately only in more detailed disclosures or in the fine print.”

Additionally, van Schewick contends that Binge On “stifles free expression” by including mostly subscription services in the program. Almost all of the participating content providers charge for access to their content, while the largest providers of free video content — YouTube, Vimeo, Facebook — are not included in Binge On.

“In its current form, Binge On turns the mobile Internet delivered by T-Mobile into a space for watching commercial entertainment,” writes van Schewick. “It gives commercial speakers an advantage over non-commercial speakers that use alternative video streaming platforms. And it hurts T-Mobile’s subscribers as listeners, making it harder for them to benefit from the breadth and depth of video content on the Internet.”

We’ve reached out to T-Mobile for comment on the report and will update if we hear anything.

Would-Be Macy’s Burglar Pulls Ploy From ‘Home Alone 2’ Handbook

The things that work in the movies, don’t always – or almost never – result in the same outcome in real life. Just ask a would-be thief in Oregon who tried to pull a Home Alone 2 ploy to rob a local department store. 

Prosecutors in Portland say the 39-year-old man attempted to hide inside a Macy’s store until after closing when he planned to make off with an assortment of goods, NBC4 reports.

A similar stunt was employed in Home Alone 2, when one of the titular “wet bandits” hid inside a toy store and waited for closing to steal cash from a charity drive.

According to authorities, the wannabe burglar hid under the skirt of a Macy’s display table on the evening of Jan. 26. Around 11 p.m., after the store had closed, he set off a motion detector on the sales floor.

When security guards responded, they spotted the intruder running through the store, pulling a rolling suitcase behind him. Authorities later found $40,000 worth of merchandise inside.

According to an affidavit, the man admitted “he had secreted himself in the Macy’s at closing time and then had proceeded to steal the merchandise recovered from the suitcase.”

He told officers that he planned to sell the merchandise to buy drugs and go on a trip.

The man was charged with one count each of second-degree burglary and first-degree aggravated theft.

‘Home Alone 2’ plot happens at Portland Macy’s [Macy’s]

Apple Kills Off Free iTunes Radio In Favor Of Apple Music

As of today, Apple’s free iTunes Radio is dead. Long live Apple Music — or at least that’s apparently the company’s plan as it officially shut down the ad-supported service today.

Apple warned iTunes Radio users earlier this month that it would be cutting off access to free stations on the service, and now it’s happening: the only way to listen to those stations now is with an Apple Music subscription, which costs $10 a month after a free three-month trial.

Now, when iOS Music app users tap on a radio station, they’re sent to a screen prompting them to join Apple Music instead.

There’s still hope for you folks out there unwilling to part with your money just to listen to music, as Apple still has one free radio station left — Beats 1, which is an ad-supported, live online radio station. Beats 1 is available worldwide with no Apple Music membership required.

“We are making Beats 1 the premier free broadcast from Apple and phasing out the ad-supported stations at the end of January,” an Apple spokesperson told BuzzFeed News earlier this month. “Additionally, with an Apple Music membership, listeners can access dozens of radio stations curated by our team of music experts, covering a range of genres, commercial-free with unlimited skips. The free three-month trial of Apple Music includes radio.”

Launched in 2013, iTunes Radio allowed users to access programmed streaming music playlists. Users had to listen through ads and were limited in the number of song skips they could use, and content was limited.

Apple claimed earlier this month that it had passed 10 million subscribers, which would put it ahead of Pandora (3.9 million paid accounts) but it’s still lagging behind Spotify’s 20 million paid members.

[h/t MacRumors]

Alaska Airlines Apologizes After “Meet Our Eskimo” Branding Effort Offends

When you’ve gone and repainted your planes with a new logo, we can understand the desire to show it off to everyone. But maybe consider running your new ad slogan by a few people before it goes public.

KTUU reports that the carrier apologized and made a tweak to its recent announcement after it came under fire for using the phrase “Meet our Eskimo” in its rebranding campaign earlier this week.

“We apologize and take full responsibility for this insensitive reference,” Alaska Airlines chief executive Brad Tilden said. “We are immediately taking down this reference, and pledge that we will work to be both respectful and fully cognizant of the importance of this symbol to the Native people of Alaska.”

Tilden said the airline is committed to working with the Alaska Native community to ensure its future actions reflect the company’s “profound respect and admiration for the Native people.”

The airline took hits on social media shortly after revealing subtle changes to the Eskimo photo used on the tails of its planes for its use of the “Meet our Eskimo” phrase to publicize the more streamlined version of its logo.

For many who spoke out against the airline, the issue was in the way the company seemed to imply it owned an Eskimo, not the use of the term Eskimo, KTUU reports.

“It was very condescending,” an Alaska resident tells KTUU. “My first thought was, ‘You don’t own an Eskimo.’ It just seemed wrong.”

In another instance an Anchorage resident said she was deeply disappointed in the Seattle-based airline, and invited executives for the company to attend a racial equality summit next week.

“True reconciliation and healing happens when a door is opened for conversation,” the woman tells KTUU.

Others used the hashtag #NotYourEskimo to voice their displeasure on social media.

“It’s another thing entirely to say this is ours… and what we’re selling,” the woman said.

Alaska Airlines chief executive apologizes for using “Meet our Eskimo” reference [KTUU]

In Comcast Country, Set-Top Box Competition Will Hurt Innovation, Raise Prices

Earlier this week, FCC Chair Tom Wheeler proposed new rules intended to increase competition in the pay-TV set-top box market. Rather than paying hundreds of dollars a year to your cable company for a device you can’t get anywhere else, the idea is that you would be able to buy your own box and save money in the long run. Amazing, Comcast — which stands to potentially lose billions of dollars if this happens — is crying foul.

In a blog post yesterday, Mark Hess — a Comcast executive with a title too long for a business card — painted Wheeler’s proposal as unnecessary government intervention in a situation he thinks is just fine.

He claims that the proposed rule — which would only require that pay-TV companies provide set-top box manufacturers with enough information to make devices that will work properly on their networks — will instead “require satellite and cable TV providers to disaggregate or separate their services so that a few companies could repackage them as their own without negotiating for content rights like everybody else in the market does today.”

How do “content rights” come into play here? There are dozens of manufacturers making BluRay disc players, but they aren’t expected to negotiate content deals. Likewise, while companies do need to make agreements with streaming services like Netflix to be included on their set-top boxes, they are not making licensing deals for the content served up by those services.

What Comcast likely means is that its business model is now reliant on the fees paid by customers for these boxes. Legislators recently attempted to find out just how much money the cable companies were making from the monthly fees associated with rented devices, and while the industry was anything but forthcoming in its responses, the lawmakers calculated that the pay-TV industry rakes in some $20 billion annually — and that’s not including fees for leased modems and routers for broadband customers.

Hess repeatedly makes the claim — again without supporting evidence — that having competition in the set-top box business would “chill” or “harm” innovation. That notion runs counter to the very idea of competition.

What incentive does Comcast have to innovate its devices when customers have no other option? The innovations that Comcast has made in recent years — notably, the launch of its X1 platform — have been attributable to either (A) the erosion of its pay-TV customer base by streaming video services [better known as “competition”]; and (B) attempts to present the company in a good light to lawmakers and regulators.

Another quizzical quote from the blog post:

“The proposal would require traditional TV distributors like satellite and cable providers – but not other video distributors – to re-architect their networks and develop an undefined new piece of customer equipment just so device companies can take apart the video service and selectively reassemble it.”

Who are these “other video distributors” that are somehow unfairly exempt from the proposed rule? Over-the-air broadcasters don’t need set-top boxes, just digital antennae, which are readily available from a wide variety of providers in a range of prices.

So Hess must mean streaming video, right? But we couldn’t think of a single major streaming video service that requires a single proprietary device for access. Netflix, Amazon, Google Play, Crackle, Hulu, Sling — even Sony’s PlayStation Vue — are available on numerous devices, from phones to tablets to gaming consoles to TVs. These “other video distributors” didn’t make the shortsighted decision of trying to make device rentals into a significant revenue stream.

Without explaining how, Hess writes that “Consumer costs would rise, content security would weaken, and consumer protections such as privacy would erode. It would undermine intellectual property rights and content licensing agreements.”

If costs for consumers go up, it will only be because Comcast and its ilk choose to drive them up. Comcast is already trying to give its customers less for their dollar by instituting data caps — and overage fees — on broadband service in more than a dozen markets.

As for content security, the FCC proposal would require that new set-top boxes use security protocols set by the pay-TV companies, so that doesn’t really track. Likewise, merely claiming that “privacy would erode” doesn’t make it so. And if Netflix can be watched on seven different devices in my house without undermining intellectual property rights or content licensing agreements, surely the cable industry can figure out a way to do the same with new, compatible set-top boxes sold by licensed third parties.

The one big question mark to the FCC proposal remains: Will consumers actually buy competing devices? As we noted earlier this week, there is indeed the possibility that new set-top boxes will be too pricey — or that not enough manufacturers will want to get into the box business — and that customers won’t buy them.

Comcast’s Hess points to the last governmental effort to introducing competition to this market — the CableCARD. The idea, introduced in a 1996 piece of legislation, was to give consumers a way to use third-party equipment.

Hess correctly notes that “consumers showed little interest” in CableCard, but as DSL Reports’ Karl Bode points out, the cable industry played no small part in scuttling interest in this pro-consumer option.

“[A] major reason for CableCARDs failure is the cable industry refusal to advertise it,” writes Bode, who also points to horror stories from Comcast CARD users who could not get them to work because the cable company would constantly de-authorize them. “As such, Comcast calling CableCARD a failure is kind of like mocking a losing marathon runner you repeatedly kicked in the crotch during the race.”

Finally, as one Consumerist reader recently asked: Isn’t it time to stop calling these devices set-top boxes? When was the last time you could actually rest one of these boxes on top of your TV set?

Thousands Of D.C. Residents Won’t Have To Pay Parking Tickets Issued During Winter Storm

There’s perhaps nothing better than hearing you won’t have to pay a parking ticket. Thousands of Washington, D.C. residents will be filled with that happy feeling after the mayor said she’ll void more than half the citations issued last Friday during the winter storm that pummeled the East Coast with snow.

Mayor Muriel Bowser will wipe away 2,800 parking tickets issued to residents and visitors who parked on snow-emergency routes before last week’s blizzard, her office announced.

The Washington Post reports that Bowser will toss fees for all tickets handed out on Friday, because some drivers might not have been aware they’d be subject to the $250 fine.

“I understand that some who received citations that Friday may not have known about the parking restriction, or may have been running errands in preparation for the storm,” Bowser said in a statement. “This ticket dismissal is one small way that we can continue to help each other recover from the storm.”

D.C. issued a total of around 5,500 tickets, worth about $1 million during last weekend’s storm, and towed almost 700 vehicles over the five and a half days the area was under a state of emergency.

D.C. to forgive thousands of parking tickets issued during snowstorm [The Washington Post]

Justin’s Almond Butter Hit With Shrink Ray, But Only At Walmart

One of the nice things about Justin’s brand nut butters is that they come in a jar that’s a full 16 ounces. Except, reader EC learned recently, at Walmart. Since his last purchase of a nut butter jar last year, the packaging has changed… and so has the volume of almond butter in the jar.

EC crunched the numbers for us. Last year, the 16-ounce jar cost $9.98, or 62¢ per pound. This year, the 12-ounce jar is nominally cheaper at $8.97, or 75¢ per pound. The almond butter seems cheaper if you aren’t really paying attention.

Here’s the curious thing, though: the 16-ounce jar hasn’t been discontinued in favor of the smaller jar. That 12-ounce jar is only available from Walmart. Other retailers that carry Justin’s products don’t have it, and that company only sells 16-ounce jars on its own website.

VW Buyback Plan Seems More Likely As Company Struggles To Find Fix For Emission-Cheating Vehicles

Since Volkswagen admitted last year to using “defeat devices” in certain cars to cheat on emissions tests, some owners and consumer advocates have pushed for the carmaker to buy back affected vehicles from customers. VW had resisted this idea, but without any other resolution in the offing, a mass buyback offer is beginning to look possible.

The New York Times reports that a lawyer for the carmaker made statements during a court hearing last week that suggest a buyback campaign may be inevitable.

While Robert Giuffra, a lawyer defending Volkswagen against class-action suits by owners of tainted diesel vehicles, noted that the company could find a solution to the defeat devices eventually, the buyback would be implemented because of timing.

“And for some of the vehicles it may well be that the timing is too far into the future,” he said during the hearing. “So we might have to do a buyback or some sort of solution like that for some subset of the vehicles, but that hasn’t been determined yet.”

VW, the Environmental Protection Agency, and the California Air Resources Board are currently in discussions on ways to resolve the emissions issues plaguing more than 500,000 vehicles in the U.S. and 11 million worldwide.

The idea of a buyback program may seem more realistic now, just weeks after CARB rejected VW’s recall plan for thousands of 2-liter vehicles sold in the state.

Specifically, the 2-liter vehicle remedy proposal failed to adequately identify and describe the affected vehicles; provide a sufficient method for obtaining owners’ names, address, and related information; describe the remedial procedure for affected vehicles; contain the impact of proposed fixes on fuel economy, drivability, performance, and safety, among other things.

The Times reports that the company is still working to find a solution for vehicles in the U.S., but it started making fixes to vehicles affected in Europe this week.

However, those remedies won’t work stateside, as emissions limited on nitrogen oxide are stricter in the U.S.

Volkswagen May Buy Back Diesel Cars It Can’t Fix [The New York Times]

Wisconsin Police Recover Second Load Of Stolen Cheese

We can all rest easy tonight, safe in the knowledge that cheese that was once ripped from the arms of its rightful owner has been safely returned. Wisconsin police say they’ve found a second load of stolen cheese, worth $90,000, that was pilfered last week.

The state was gripped by the harrowing tale of the two recent cheese heists, which involved $160,000 worth of missing dairy products from two different cities, hundreds of miles apart. One batch of cheese worth $70,000 was recovered already, police announced Monday.

And now, law enforcement officials in Marshfield, WI say they received a tip on Thursday about that 41,000 pounds of Parmesan cheese worth $90,000 that went missing Jan. 15, reports the Associated Press. A semi had picked up the cheese load from a distributor, but it never made it to its intended destination in Illinois.

Police heard that the cheese was probably hanging out in Grand Chute, and lo and behold — police in that city found the entire shipment intact (which I find remarkable, because who wouldn’t take a little nibble off the top?).

Officials still haven’t said whether the cases are connected. We can all sleep a little easier now, knowing that someone out there is looking out for the cheese in this world.

Wisconsin Police Recover Another Load of Stolen Cheese [Associated Press]

Nissan Recalls 846,000 Altimas Over Hood Latch Issues For The Third Time

For the third time in the past year and a half, Nissan is recalling hundreds of thousands of Altima vehicles because of fears the cars’ hoods will fly open while on the move. 

Nissan announced this week that it would recall approximately 846,000 model year 2013 to 2015 Altima sedans.

According to a filing [PDF] with the National Highway Traffic Safety Administration, the recall was initiated because the vehicles may contain a secondary hood latch – which is supposed to keep the hood down if the primary latch is not engaged – that can bend and remain in the unlatched position when the hood is closed.

As a result, if the primary latch inadvertently releases and the secondary latch is not engaged, the hood could unexpectedly open while driving, increasing the risk of a vehicle crash.

The vehicles were previously tied to two recalls in October 2014 and March 2015. However, Nissan says the remedy in those situations may not have been performed consistently to remove the safety risk.

Nissan will re-notify all affected owners and dealers will replace the hood latch with a new one, free of charge.

Consumerist Friday Flickr Finds

Here are six of the best photos that readers added to the Consumerist Flickr Pool in the last week, picked for usability in a Consumerist post or for just plain neatness.

Want to see your pictures on our site? Our Flickr pool is the place where Consumerist readers upload photos for possible use in future Consumerist posts. Just be a registered Flickr user, go here, and click “Join Group?” up on the top right. Choose your best photos, then click “send to group” on the individual images you want to add to the pool.