Proposed Rule Would Require List Price Disclosure on Consumer Prescription Drug Ads

Check out our recent Alert on the Centers for Medicare and Medicaid Services proposed new rule, which would require prescription drug companies to disclose list prices of most drugs in all direct-to-consumer advertising.  I join with Foley Hoag FDA attorneys Brian Carey, Paul Kim and Christian Springer to break it down.  Of particular interest to advertising and marketing lawyers, CMS proposes that the main enforcement mechanism should be industry self-policing through Lanham Act false advertising lawsuits. … More

Martha Coakley Speaks with Tim Cheatham of Wal-Mart on Exploring Collaboration with State Attorneys General

Yesterday was Day One of the Retail Industry Leaders Association (RILA) Retail Law Conference in Austin, Texas. For the first General Session, Foley Hoag’s Martha Coakley, who chairs our State Attorney General Practice, spoke with Tim Cheatham, Senior Vice President and General Counsel of Wal-Mart, about exploring collaboration between Attorneys General and General Counsel. Martha, a former Attorney General of Massachusetts, and Tim, the General Counsel of America’s largest retailer,… More

New Revisions to NAD Procedures

The National Advertising Division (NAD) of the Council of Better Business Bureaus announced and released several revisions to its ASRC Procedures during its annual conference on September 24-25.

Reopening a Case

One of these revisions was teased by NAD in advance of the conference and reported in our blog post here. As expected, NAD altered its rules governing an advertiser’s submission of additional substantiation materials after a NAD decision or NARB appeal.… More

Twelve Months of NAD Decisions, by the Numbers

The annual conference of the National Advertising Division of the Council of Better Business Bureaus (NAD), coming up next week, September 24 and 25, in New York, is one of the key events on the advertising-law professional calendar. A highlight of the event is always the review of the key NAD cases and emerging themes over the past year, as determined both by NAD attorneys and by participants and their counsel.… More

Second Chances: Will There Be Big News at the NAD Conference About Post-Decision Substantiation?

Doesn’t everyone deserve a second chance?  It’s a deep philosophical question.  And one that the National Advertising Division of the Council of Better Business Bureaus (NAD) has been pondering.  In a couple of weeks, we may find out what it has concluded.

On September 11, NAD shared with those registered for its annual conference, taking place in New York September 24 and 25,… More

Public Comments to the Proposed National Bioengineered Food Standard

Image submitted by several commenters making the point that the USDA has switched to “happier” and less informative proposed disclosure symbols.

The USDA’s Agricultural Marketing Service recently accepted public comments on its Proposed Rule for the labeling of bioengineered foods, as directed by the Federal Bioengineered Food Disclosure Standards Act of 2016, amending the Agricultural Marketing Act, with the comment period closing July 3.  The proposed standard, which we previously covered here, has important implications for food packaging and labeling disclosures and ultimately for false-advertising litigation exposure.

I reviewed the 14,016 comments that were submitted, and my full analysis was just published in the online magazine Food Quality & SafetyFollow this link to check out my detailed conclusions.  To whet your appetite, here are some high-level take-aways.

Comments were submitted by everyone from individual consumers, to food companies large and small, to trade associations and advocacy groups, to foreign governments to a U.S. Senator.  Several aspects of the proposed rule were lightning rods for comments.  One, illustrated by the photo above which was submitted with several comments, was the agency’s proposal to use “bioengineered foods” or the abbreviation “BE” instead of the more common “genetically modified” or GMO, and the option to present the disclosure in the form of a symbol redolent of leaves, suns and “smiley faces.”  Many individual commenters, interest groups, organic food producers, and even some mainstream food producers thought these symbols might be difficult to interpret and biased in favor of BE foods.  Another key issue was the question of whether “highly refined” foods that may have been derived from bioengineered plants, but that now should contain no traces of DNA so that they are indistinguishable from other products, should require disclosure.  Some views on this question came from unexpected sources.

With those teasers, I invite you to read the full article.  Watch this space for news on what the USDA does in response to these comments, and the implications for advertising law.

Copyright Office Denies Protection for “Unique” Product Packaging

Our colleague and fellow advertising lawyer, Dave Kluft, wrote a great piece on the challenges of obtaining copyright protection for product labels consisting of a unique collection of elements (e.g., text, color, framing, or ordinary shapes) but not otherwise incorporating content sufficiently original to merit copyright protection in its own right.  Originally published on our Trademark and Copyright Law Blog, we are republishing it here given its relevance to advertisers. … More

Watch: How In-House Counsel Can Navigate Advertising Issues and Other FTC Priorities in the Current Administration

Are you wondering how to keep your company in the good graces of the FTC and other regulators when it comes to your company’s advertisements? You are not alone. Watch this webinar to learn about the advertising-related priorities of the Trump administration, how they affect your business, and what you can do to mitigate your company’s risk.

Topics include how to substantiate and defend marketing claims your company wants to make about its products and services,… More

Regulators Step Up Scrutiny of Cryptocurrency Advertising as Industry Stance Softens

We posted earlier this year about increased scrutiny of cryptocurrency advertising, especially the promotion of Initial Coin Offerings, or ICOs.  The key takeaway from that post was that the frenzy around cryptocurrencies – including as an investment opportunity for individuals who aren’t otherwise active investors – has led to a number of efforts to curtail cryptocurrency promotion, from both regulators and industry stakeholders.

Since that post,… More

What Could the USDA’s Bioengineered Food Disclosure Standard Mean for Food Labeling Litigation?

Bioengineered Food Disclosure Standard logoThe symbol at right is one of the three candidate food labeling symbols indicating the presence of “bioengineered foods” being proposed by the Agricultural Marketing Service (AMS) of the U.S. Department of Agriculture in its National Bioengineered Food Disclosure Standard (NBFDS).  Published May 4, 2018, in the form of a Proposed Rule, the standard is open for public comment until July 3.  The rather complex symbology of this carefully designed little symbol is described in the proposed standard at some length:

“The bottom proportion of the circle contains an arch,… More