Last month the Federal Trade Commission (FTC) and the U.S. Food and Drug Administration (FDA) sent joint warning letters to four companies that manufacture and advertise flavored liquids used in vaping (“e-liquids”). While the letters focus on the nicotine content of the products, they should nevertheless be of interest to cannabis advertisers because they demonstrate a continued regulatory focus on vaping and suggest a framework that may soon apply more broadly to the promotion of retail cannabis products.… More
Class action suits by consumers continue to be on the rise, especially in the false advertising area. Some recent rulings, especially in districts that have not been traditional class-action hotbeds, have made them more attractive to plaintiffs. But there are still effective strategies for defending these cases.
Foley Hoag presents a webinar covering hot topics related to false advertising class actions, including:
- Subject matter of recent false advertising class actions
- Current tactics being used by plaintiff counsel to overcome obstacles to consumer class certification
- Developments in the case law relating to certification of multi-state classes and claims for injunctive relief
- Practical guidance on managing and defending consumer false advertising class actions
- Proper use of arbitration clauses to prevent class certification
On March 19, 2017, Marilu Calderon went shopping at the Kate Spade outlet store in Carlsbad, California, and a “Flavor of the Month” charm pendant caught her eye. The price on the tag was $78.00, but in-store signs stated that the product was an additional 60% off. Ms. Calderon thought that was a good deal, so she purchased the pendant for $31.20.
Five months later, in New Jersey,… More
The Food and Drug Law Institute’s 2019 Food Advertising, Labeling, and Litigation Conference for the Food and Dietary Supplement Industries will take place September 26 and 27 in Washington DC. This is always an excellent conference that showcases specialized expertise in this important area of regulation and litigation. Speakers always include key officials from relevant enforcement agencies such as the Federal Trade Commission, Food and Drug Administration, and U.S.… More
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 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
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
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
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
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