Partner August Horvath recently analyzed a decision by the Ninth Circuit Court of Appeals affirming dismissal of a case alleging that calling a soft drink a “diet” soda communicates consumers that you are selling a weight-loss product. As August notes, Judge Orrick and the Ninth Circuit panel understood the need to review advertising and marketing claims using common-sense understanding of what words mean in context. In so doing,… More
Category Archives: Advertising
As commerce becomes increasingly electronic and decentralized, manufacturers and brand owners face new challenges in protecting and enforcing their intellectual property rights in the context of online marketplaces. IP owners, courts and the marketplaces themselves are struggling to define fair, effective and efficient approaches to protecting IP rights and consumers without hindering the free flow of online commerce.
Foley Hoag presents a webinar covering recent developments and best practices for companies seeking to protect copyrights, … More
Business is booming for cannabis ventures, but the legal landscape for related intellectual property protection and product advertising is rife with complications that demand special consideration, and companies should be paying attention to these issues out of the gate.
Foley Hoag presents a webinar covering a range of topics related to cannabis IP protection and promotion, including:
- Maximizing trademark rights at the federal and state level
- Leveraging copyright as secondary protection for brands
- Cannabis patent basics and strategies
- Advertising best practices and what not to say FDA regulation of cannabis and cannabis-derived products
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.… More
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
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
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
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
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
Foley Hoag will join up with the National Advertising Division of the Council of Better Business Bureaus (NAD), America’s premier self-regulatory and alternative dispute resolution forum for false-advertising matters, to host NAD’s first-ever live conference devoted entirely to the use of consumer perception surveys to determine the messages implied by advertisements challenged in NAD proceedings. The conference will be held next Friday, December 7, at the IAB Ad Lab in New York.… More
With the opening of the East Coast’s first marijuana retailer just days away, consumers in Massachusetts may soon begin seeing advertisements promoting all manner of cannabis products, services, and establishments. The state’s Cannabis Control Commission has drafted regulations that place restrictions on marijuana advertising, but even with those restrictions, there is still plenty of opportunity for retailers and product manufacturers to promote cannabis to consumers,… More
Check out our recent Alert on the Centers for Medicare and Medicaid Services proposed new rule, which would require prescription drug companies to disclose list prices of most drugs in all direct-to-consumer advertising. I join with Foley Hoag FDA attorneys Brian Carey, Paul Kim and Christian Springer to break it down. Of particular interest to advertising and marketing lawyers, CMS proposes that the main enforcement mechanism should be industry self-policing through Lanham Act false advertising lawsuits. … More
Martha Coakley Speaks with Tim Cheatham of Wal-Mart on Exploring Collaboration with State Attorneys General
Yesterday was Day One of the Retail Industry Leaders Association (RILA) Retail Law Conference in Austin, Texas. For the first General Session, Foley Hoag’s Martha Coakley, who chairs our State Attorney General Practice, spoke with Tim Cheatham, Senior Vice President and General Counsel of Wal-Mart, about exploring collaboration between Attorneys General and General Counsel. Martha, a former Attorney General of Massachusetts, and Tim, the General Counsel of America’s largest retailer,… More
Reopening a Case
One of these revisions was teased by NAD in advance of the conference and reported in our blog post here. As expected, NAD altered its rules governing an advertiser’s submission of additional substantiation materials after a NAD decision or NARB appeal.… More
The annual conference of the National Advertising Division of the Council of Better Business Bureaus (NAD), coming up next week, September 24 and 25, in New York, is one of the key events on the advertising-law professional calendar. A highlight of the event is always the review of the key NAD cases and emerging themes over the past year, as determined both by NAD attorneys and by participants and their counsel.… More
Doesn’t everyone deserve a second chance? It’s a deep philosophical question. And one that the National Advertising Division of the Council of Better Business Bureaus (NAD) has been pondering. In a couple of weeks, we may find out what it has concluded.
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
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
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
The 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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