Category Archives: Advertising

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

British Regulator Seeks to Stamp Out Harmful and Offensive Gender Stereotypes in Advertising

The wedding of Prince Harry and Ms. Meghan Markle is officially in the books.  Like many of you, I learned some interesting things about the royal couple in the media hysteria leading up to the wedding. For example, when she was eleven years old, Ms. Markle (now the Duchess of Sussex) took on a major national advertiser for its use of gender stereotyping in a commercial for dishwashing liquid and prevailed.… More

Advertising Law Compliance for Start-Up Companies

Publicly launching its first product or service is an exciting time in the life of a start-up company.  In this blog post, we provide some “rules of the road” that will hopefully prevent that all-important first product launch from turning into a legal disaster.  Elsewhere, we have blogged about trademark, patent, domain name, and copyright strategies for start-ups and early-stage companies.… More

An Influencer Award for a Kardashian, but Not from the FTC

If you’ve ever lamented that Kim Kardashian West just doesn’t receive enough recognition for her efforts at promoting her own and other brands, we have exciting news for you. Women’s Wear Daily reports that the Council of Fashion Designers of America (CFDA) announced last week that Kim will be the recipient of its first ever “Influencer Award” at the CFDA Fashion Awards on June 4.… More

Retro-Grade: Old-School Chewing Gum Ad Raises Modern Claim Substantiation Issues

Welcome to another installment of Retro-Grade, where we take a trip down memory lane, looking at classic ads from days of yore and examining issues that might arise if those ads were run today.  As the name of the series implies, we give each ad a grade.  We are not at liberty to disclose the details of our proprietary grading scheme, but, suffice it to say, it is neither rigorous nor scientific.… More

FTC Settles Claims Over Deceptive “Made in USA” Ads By Haberdasher That Wore Two Hats

When you tell consumers that your product is made in the United States, you are not just giving them the manufacturing location. You are invoking their national pride, their concern about their country’s place in the world, and their anxieties about their own jobs. It’s a powerful marketing toolbox. Perhaps for that reason, some advertisers loudly tout their products as “Made in USA” even when it’s not true.

To combat such tactics,… More

Advertising Tips for Food and Dietary Supplement Manufacturers

In the course of my career, clients have often asked for a nutshell summary of the key principles guiding the Federal Trade Commission’s (FTC) action in the food and dietary supplements industries.  Two decades of experience have brought these principles into clear focus and have provided a vantage point from which to assess the risks of non-compliance.  While by no means a substitute for legal advice, the short summary below will,… More

Green Guide Annual Review: Environmental False Advertising in 2017/2018

Earth Day is coming up on April 22, and you may be looking to capture some environmentally-minded consumers with nifty green-themed advertising campaigns. But before you do, remember that the Federal Trade Commission (“FTC”) monitors environmentally-themed marketing for potentially deceptive claims, and evaluates their compliance with Section 5 of the FTC Act by reference to the “Green Guides.”

The Green Guides,… More

Class Action Plaintiffs Target Snack Foods in Latest Round of “Slack-Fill” Suits

Have you ever purchased a bag of snacks only to open it up and feel cheated by the air-to-snack ratio?  Does empty space in a bag of chips leave a bitter taste in your mouth?  Does your snack-time routine involve the use of a ruler?  If you’re like most people, the answer to all three of these questions is probably “no.”

(Source: Complaint in Morrison v.… More

Marijuana Ad Rules Set In Massachusetts, But Federal Prohibition Creates Uncertainty

We posted in January about proposed regulations for advertising adult-use marijuana in Massachusetts once retail sales begin on July 1, 2018.  After a series of public meetings and more than 500 public comments, the Cannabis Control Commission (“Commission”) revised the draft and unanimously approved final regulations in early March.  This means that the rules of the road for advertising by “Marijuana Retailers” in Massachusetts are now set,… More

Q&A With Mark Mansour, Newest Member of Foley Hoag’s Advertising and Marketing Practice Group

The last few months have brought an abundance of riches to Foley Hoag’s Advertising and Marketing Practice Group.  After expanding the group with the addition of August Horvath in New York, we are pleased to welcome nationally recognized FDA expert Mark Mansour to Foley Hoag’s Washington, D.C. office, where he will complement the firm’s existing FDA expertise and bring decades of experience to a fast-growing practice.  Mark’s expertise is broad,… More

“Non-GMO” Advertising Claims Join “Natural” Claim in the Parking Lot

Courts adjudicating claims that food producers deceptively label their products “non-GMO” are starting to park the claims in the same lot to which many “natural” claims have been assigned. Both await government policy action that may be a long time coming, and that may or may not end up resolving the cases.

In a case filed in 2015, In re KIND LLC “Healthy and All Natural” Litigation, a consumer class accused KIND LLC,… More

Retro-Grade: Vintage Taste Test Claim Offers Lessons for Today’s Advertisers

Welcome to Retro-Grade, another new series from Foley Hoag’s Advertising and Marketing Law blog.  Here we take a trip down memory lane, looking at classic American ads from days gone by and examining issues that might arise if those ads were run today.  As the name of the series implies, we give each ad a grade.  We are not at liberty to disclose the details of our proprietary grading scheme,… More

Bitcoin Takes A Hit As Cryptocurrency Advertising Faces Increased Scrutiny

Crypto is a Greek prefix meaning “secret” or “hidden.”  Unless you live under a rock, or in one of several countries like Bolivia where buying and selling it is illegal, there is nothing secret or hidden about cryptocurrency.  It’s everywhere.  And public interest in cryptocurrency has led to lots of advertising, mostly on social media and the internet.

Spurred on by an incredible—some might say too-good-to-be-true—increase in value in late 2017,… More

FTC Announces Proposed Abandonment of Picture Tube Rule

Remember when your TV screen used to curve into the wood casing of the console? Neither does the Federal Trade Commission. That’s why the FTC recently announced  the proposed repeal of the “Picture Tube Rule,” otherwise known as “Deceptive Advertising As to Sizes of Viewable Pictures Shown by Television Receiving Sets,” which you can find (at least for a few more months) at 16 C.F.R. 14.01.… More

The Adver-series: State Attorneys General Play Increasing Role in Advertising Regulation

Introduction

Every day, consumers are bombarded with advertising messages: print ads on the subway, promoted posts on social media, thirty-second spots on the radio, native ad thumbnails on the internet, email blasts from retailers, product labels touting savings and benefits, billboards along the highway, commercial breaks before the “big reveal” on reality TV, robocalls, and the Saturday morning infomercial, to name just a few.

And, for those fortunate or unfortunate enough to have an office right in the middle of Times Square,… More

Thoughts on KFC’s Extra Crispy British Apology Ad

Background

Last week, KFC restaurants published a full-page advertisement in British newspapers to apologize for a chicken shortage that had closed a number of its locations.  The ad’s most prominent feature was a KFC chicken bucket with its initials rearranged “FCK”.  The ad received wide acclaim on the internet for its candor and informal audience engagement.

Our Advertising & Marketing Law Blog co-editors got together to share their reactions.… More