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: Food and Beverage
FDLI Food Advertising, Labeling, and Litigation Conference Now Accepting Proposals
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
What Does FDA Commissioner Scott Gottlieb’s Resignation Mean for Food Marketing?
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
Mandatory Oversharing on Food Labels: A Good Week for the Resistance
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
Damages Models in Food Labeling Class Actions: Upcoming Roundtable
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
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
A Trap for the Unwary: Cannabis Health Claims Likely to Draw Scrutiny from Advertising Regulators
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
Public Comments to the Proposed National Bioengineered Food Standard
The USDA’s Agricultural Marketing Service recently accepted public comments on its Proposed Rule for the labeling of bioengineered foods, as directed by the Federal Bioengineered Food Disclosure Standards Act of 2016, amending the Agricultural Marketing Act, with the comment period closing July 3. The proposed standard, which we previously covered here, has important implications for food packaging and labeling disclosures and ultimately for false-advertising litigation exposure.… More
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?
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
Top Food and Drug Cases, 2017, and Cases to Watch, 2018
In case you missed the 2018 Food & Drug Law Institute (FDLI) Annual Conference last month, the FDLI has given us permission to share the book everyone received at the conference, discussing the top food and drug cases of 2017 and cases to watch for the rest of 2018. I was honored to edit this volume for FDLI. The link to download the book in PDF form is here. … 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