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

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

The Federal Trade Commission Is Closed for the Shutdown

As the partial federal government shutdown continues, visitors to the FTC’s web site will see a banner at the top of the main page reading, “The FTC Is Closed Due to the Lapse in Government Funding,” and directing the reader to a page with details about the closure. That page reveals that not all FTC activities are completely shut down. The activities most essential for facilitating U.S.… More

CARU Holiday Warning: Kissing This Dog Will Not Make Your Wishes Come True!

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

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

Consumer Surveys in NAD Cases

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

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

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