Watch – Fake and Biased User Reviews: The Current State of the Law

Fourteen thousand, eight hundred and fifty-nine reviews! Four and a half stars! Who can resist these authentic, crowd-sourced endorsements of a product or service? Studies and market results show that consumers rely heavily on user-submitted reviews in choosing among products and sellers on e-storefronts. But how authentic are these user reviews?

In February, the FTC settled a case with a company that it accused of purchasing falsified user reviews. Beyond outright fabrication, user reviews can be incentivized, selectively solicited, filtered, or biased in other ways. In this webcast, Foley Hoag partners August Horvath and Dave Kluft explore these various practices and the enforcement and litigation activity that they have spawned.

Partner Dave Kluft Publishes Column in Packaging Strategies on Cannabis Packaging and Advertising

Partner Dave Kluft discusses five questions to think about when considering marijuana packaging and advertising in a legal column for Packaging Strategies magazine.

With each passing year, the legalized cannabis industry grows as the stigma associated with it decreases. Ten states currently permit recreational marijuana, over 20 more permit medicinal use, and annual nationwide spending on legal cannabis is projected to reach nearly $50 billion in the next decade.… More

What Does FDA Commissioner Scott Gottlieb’s Resignation Mean for Food Marketing?

On March 5, Food and Drug Administration Commissioner Scott Gottlieb resigned after 22 months at the helm of the agency. His resignation will be effective as of a date that is as yet unspecified, but will be about one month from the date of his announcement. What might his resignation portend for any changes in FDA policy with respect to food marketing?

Gottleib was not known for focusing on food issues during his tenure.… More

Mandatory Oversharing on Food Labels: A Good Week for the Resistance

People on social media, and in some face-to-face social settings, often reveal more about themselves than they need to or really should. When someone makes an embarrassing but unnecessary disclosure, we call it “oversharing.” We might respond, “Oh, wow, TMI” (the online code for “too much information”).

Last week, two court rulings – one dismissing a litigation, and the other ruling an ordinance unconstitutional – helped food companies resist efforts by activists to compel them to overshare.… More

Damages Models in Food Labeling Class Actions: Upcoming Roundtable

On Thursday, February 7, Foley Hoag partner August Horvath will join a panel of other authorities to discuss methods of damages estimation in food labeling class actions, sponsored by the ABA Section of Litigation.  Numerous class action suits continue to be brought alleging food mislabeling involving the package size, the nation of origin, the functional and health benefits, or the contents of consumer products.… More

Pillow Fight: Consumer Advocacy Group Targets Pillow Manufacturer’s “Deep Sleep” Advertising Claims

We have written many times about the key players in U.S.-based advertising regulation: the Federal Trade Commission, the National Advertising Division, and states’ attorneys general.  But there is another player that is often overlooked in these discussions: consumer advocacy groups.

One of the leading consumer advocacy groups focused on advertising is Truth in Advertising (TINA.org), an independent non-profit organization that monitors advertising for claims it views as misleading or deceptive. … More

Retro-Grade: What the La Choy Dragon Can Teach Us About Advertising Law, FDA Standards of Identity, Evolving Gender Roles, and Noodles

The marketing of pasta products sold in American grocery stores is a fascinating case study in the evolution of FDA food standards, American marketing, and even gender roles, as well as the growing diversity of America’s consumer population and its palate.

Most of the Food and Drug Administration’s standards of identity for food products were formulated in the early 20th century, and they reflected the foods in American stores and kitchens of that time.… More

The Federal Trade Commission Is Closed for the Shutdown

As the partial federal government shutdown continues, visitors to the FTC’s web site will see a banner at the top of the main page reading, “The FTC Is Closed Due to the Lapse in Government Funding,” and directing the reader to a page with details about the closure. That page reveals that not all FTC activities are completely shut down. The activities most essential for facilitating U.S.… More

CARU Holiday Warning: Kissing This Dog Will Not Make Your Wishes Come True!

What if I handed you a stuffed animal for Christmas and told you to kiss it in order to make your wishes come true? Did I just make an untrue factual claim, or was I merely engaged in harmless puffery?  Would your answer change if you were only six years old? Just in time for the holidays, the Children’s Advertising Review Unit (“CARU”) has weighed in on this question.… More

Claim Construction Surveys at the National Advertising Division: A Quantitative Analysis

This post describes a quantitative analysis of the use of consumer perception surveys to interpret implied advertising claims in the past five years of cases before the National Advertising Division of the Council of Better Business Bureaus (NAD), which I presented at the NAD Survey Conference in New York on December 7.

How Many Surveys Does NAD Receive – and Accept?

NAD is America’s leading industry self-regulatory forum for resolving competitor disputes over false advertising.… More