Category Archives: False Advertising

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

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

Advertising and Marketing Law Content at the FDLI Annual Conference

This week, May 3 and 4, the Food and Drug Law Institute (FDLI) holds its Annual Conference in Washington, DC.  FDLI (I have heard insiders pronounce it “fiddly,” but I refuse to do so) covers all aspects of law and policy affecting food and drugs, including Food and Drug Administration (FDA) enforcement, intellectual property, state and local regulation, and the latest technological developments.  This year’s conference,… 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

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

“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

Watch: Brand Management for In-House Counsel

The Intersection of Trademarks, Advertising and Corporate Social Responsibility

Protecting the value of your corporate brand is a critical mission. As companies are increasingly asked to make disclosures regarding their efforts to address social and environmental risks, these disclosures create both opportunities and challenges for those entrusted with protecting a company’s intangible assets.

In this webinar, we explore the interrelationship between trademarks, false advertising and emerging compliance requirements in the field of corporate social responsibility (CSR).… More

I Subscribed to What? What Online Subscription-Based Marketers Need To Tell Their Consumers

I am certainly not the only person who has been lured into purchasing a too-good-to-be-true, deeply discounted product online, only to learn that what I actually purchased was a subscription to buy more stuff.  Kate Hudson’s athletic wear company Fabletics hooked me about a year ago when I saw a cute workout outfit advertised on social media for only $25.00.  I purchased the outfit on Fabletics’ website,… More

The FTC, Like, Revises Its Social Media Endorsement Guides, Bruh!

This month, the Federal Trade Commission (“FTC”) issued a revised version of “Endorsement Guides: What People Are Asking,” a series of questions and answers pertaining to the conduct of “influencers,” that is, anyone who endorses a product or service. The basic premise of the Endorsement Guides is that, if there exists a material connection between the influencer who is endorsing the product and the company that is marketing the product (e.g.,… More

Watch: False Advertising Law for the Generalist In-House Counsel

Advertising can take many forms, including statements about a company’s products on websites and social media platforms. A wrong step can result in serious consequences, including legal challenges from competitors, consumers, the Federal Trade Commission, and other regulatory agencies.

Watch this webinar to learn how you can protect your company against legal challenges based on its advertising practices. You will also learn what options are available if your competitors are making false or misleading statements in their advertisements.… More

Environmental False Advertising: An Earth Day Green Guide Review

Earth Day is coming up on April 22, which means that a lot of consumers are going to be reminded to think green, and to buy green. What if your company is looking to access this vast market of environmentally-minded shoppers, but your product or service isn’t really that environmentally conscious? Can you just go ahead and label yourself “Green” anyway?  Who’s gonna notice?

Well,… More

A Hefty False Advertising Case: When the Competition Calls You Wimpy

If you’re interested in garbage, the crass objectification of male celebrities, or both – or if you consider the two roughly equivalent – have I got a false advertising case for you!  Despite their “Don’t Get Mad; Get Glad” tagline, the makers of Glad trash bags got pretty mad at a recent advertising campaign launched by their competitor, Hefty. So mad, in fact, that they filed a complaint with the National Advertising Division (NAD) of the Better Business Bureau.… More

Advertising Through Social Media: Ten Tips For FTC & NAD Compliance

social-media

This post first appeared in Law360 as “10 Considerations When Advertising On Social Media,” published on September 21, 2016.

Most modern advertising campaigns include social media components. In fact, it is not uncommon today to see products advertised exclusively on social media. For the most part, the same rules that govern traditional advertising also govern commercial speech on social media.… More

I May Not Be Able To Pronounce Acai But I Know It Doesn’t Burn Fat Cells: 5 Recent Over-the-Top Weight Loss Advertising Claims And How The Federal Trade Commission Responded

acaiSome say “ah-sigh;” I say “ah-kai;” but apparently the proper pronunciation of “acai”  — the so-called super berry  — is actually “ah-sigh-ee.”  Who knew?  Acai berries are native to the Amazon rainforest and have been hailed by marketers as offering a slew of health benefits, including massive weight loss.    Unfortunately, according to various consumer advocacy groups like the Center for Science in the Public Interest,… More

Brainstorm: FTC Continues Enforcement Trend Against Cognitive Function Claims

LearningRXContinuing its trend of scrutinizing claims touting improved cognitive function, the Federal Trade Commission recently announced a settlement with LearningRx Franchise Corp. (“LFC”), the developer and franchisor of a chain of “LearningRx centers” providing one-on-one cognitive training to consumers.  The FTC’s settlement with LFC comes in the wake of several other high-profile FTC actions involving cognition claims, including a $2 million settlement with Lumos Labs,… More

FDA Issues Final Guidance on Proprietary Names for Drugs and Biological Products

Dozens of prescription medicine bottles in a jumble. This collection of pill bottles is symbolic of the many medications senior adults and chronically ill people take.

The Food and Drug Administration (FDA) has finalized guidance for industry describing the agency’s evaluation process for proposed proprietary names for drug and biological products.  The guidance applies to all prescription and nonprescription drug products, innovator and generic drug products, and biological products.  Drug products that may be legally marketed without an approved application are excluded (e.g., OTC drugs legally marketed under a tentative or final monograph). … More

Watch: 10 Insanely Important FTC Advertising Enforcement Trends for 2016

Following a very active year in 2015, the FTC appears poised to continue and expand its focus in several key areas. This webinar looks back at key enforcement initiatives of the past 12 months and examines expected areas of enforcement in the year ahead, including:

  • Native advertising
  • Health claims
  • Cognition claims
  • Disclosures
  • Promotion of technology products
  • Endorsements and seals
  • “Green” claims
  • “Made in the USA” claims
  • Plus,…
  • More

AdCode 2.0: Better Business Bureau Updates Advertising Code to Keep Up With Technology

The Better Business Bureau announced last Thursday that it has amended its Code of Advertising to address the new and evolving ways in which advertisers reach consumers through technology.  The Better Business Bureau is the administrative parent of the advertising industry’s self-regulatory bodies, including the National Advertising Division.

As advertisers market to consumers who spend more time looking at smart phones and computer screens than television screens and magazines (the traditional media of mass-market advertising),… More

Dispatch from NYC: Annual National Advertising Division (NAD) Conference is in Full Swing

CaptureThe National Advertising Division is holding its annual conference this week in New York, and Foley Hoag is in attendance for what many consider to be the leading conference of its kind.  Day One saw an impressive line-up of panelists and speakers, beginning with an address by Federal Trade Commission Chairwoman Edith Ramirez, who outlined areas of particular focus over the coming year:  weight loss claims, cognitive benefit claims,… More

Milk Dud? False Advertising Lawsuit Against Makers of Muscle Milk Illustrates Interplay Between Lanham Act, FTC and FDA

MM1In a lawsuit recently filed in the Southern District of Florida, Global Beverage Enterprises, Inc. (“Global”), the manufacturer of specialty carbonated beverages like Mr. Q. Cumber Sparkling Cucumber Beverage, brought Lanham Act claims against CytoSport, Inc., alleging false advertising of CytoSport’s popular Muscle Milk line of beverages.  The basis of the claim is that the Muscle Milk beverages contain no milk and, therefore, the product name is false and misleading. … More

Settlement in False Advertising Class Action Leaves First Amendment Questions Unanswered

Vibram

On April 30, 2014, the plaintiffs in Bezdek v. Vibram, a class action in the District of Massachusetts, filed for court approval of a class wide settlement. The case had been brought against Vibram, the Italian manufacturer of “five finger” minimalist footwear, by consumers who alleged that the company committed false advertising when promoting health benefits of its product for which there was allegedly no scientific support.… More

This Porridge is Just Right: Supreme Court Adopts “Zones of Interest” Standing in False Advertising Cases

Bears When we last posted about Lexmark v. Static Control, we expected that the Supreme Court would endorse one of the circuit court tests to determine whether Static Control, the maker of a chip that facilitates printer cartridge remanufacturing, had standing to bring a false advertising claim against Lexmark, a company that makes printers and printer cartridges but is not strictly a competitor of Static Control.… More