Category Archives: Food and Beverage

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

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

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

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

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