Category Archives: Regulation

Recent FTC and FDA Warning Letters May Hold Lessons For Cannabis Advertisers

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

Phantom Savings: Bargain Shoppers Cry Foul Over Alleged Fictitious Pricing Schemes

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

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

Partner Dave Kluft Publishes Column in Packaging Strategies on Cannabis Packaging and Advertising

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

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

Pillow Fight: Consumer Advocacy Group Targets Pillow Manufacturer’s “Deep Sleep” Advertising Claims

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

Claim Construction Surveys at the National Advertising Division: A Quantitative Analysis

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

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

Proposed Rule Would Require List Price Disclosure on Consumer Prescription Drug Ads

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

New Revisions to NAD Procedures

The National Advertising Division (NAD) of the Council of Better Business Bureaus announced and released several revisions to its ASRC Procedures during its annual conference on September 24-25.

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

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

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

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

British Regulator Seeks to Stamp Out Harmful and Offensive Gender Stereotypes in Advertising

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

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 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

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

“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

The Adver-series: State Attorneys General Play Increasing Role in Advertising Regulation

Introduction

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