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
Category Archives: Speech
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
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
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
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
The Adver-series: State Attorneys General Play Increasing Role in Advertising Regulation
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
The Foley Hoag Advertising and Marketing Law Blog: A Mission Statement of Sorts
We were delighted last month when Foley Hoag LLP named us as the new co-chairs of the firm’s Advertising and Marketing Law group. This month, as our first official act, we are pleased to announce the launch of the Advertising and Marketing Law Blog.
Advertising and marketing regulation and litigation can be a complicated game. Really complicated. … More
Food Advertising And Compelled Commercial Speech In 2017
According to the Hyper-Chicken, a lawyer from my favorite television show, “freedom of speech applies to what comes out of a mouth, not what goes in.” State of Alabama v. Giant Space Iguana, 273 U.S. Ω (2976) (chewing corners off Constitution deemed non-protected speech).
The Hyper-Chicken is a fictional cartoon alien from the future,… More
10 Marketing Law Takeaways From ANA/BAA 2017
We just got back from the Association of National Advertising (ANA) and Brand Activation Association (BAA) Marketing Law Conference in Chicago, held earlier this week. With hundreds in attendance, and dozens of speakers presenting over three days, it was a great opportunity to learn about “hot” trends and key issues in the advertising and marketing space from an array of stakeholders – marketers, attorneys, regulators,… More