David Conway

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Few words in the advertiser’s dictionary have the alluring effect of “New.”  It jumps off the shelf (or out of the web browser) at the consumer and hints that something exciting, innovative, and maybe even trendsetting can be discovered just by reading further, learning more, clicking here, or calling now.  That’s why the NAD’s decision earlier this week recommending that Sprint abandon its ubiquitous “America’s Newest Network” slogan got us thinking that perhaps a refresher…
Consumer complaints are a fact of life for even the most scrupulous businesses.  When companies deal with consumers in a uniform yet large-scale manner, occasional lapses that generate ill-will are inevitable.  Upset customers can lead to lost sales and diminished reputation, but they can also affect more than just the bottom line.  Over the past decade, American businesses have seen an up-swell in consumer-driven class actions.  At the same time, federal and state regulatory agencies…
We are close to live blogging from the annual NAD Advertising Law Conference and for those who could not join us, we wanted to share highlights from its opening — keynote speaker FTC Chairwoman Edith Ramirez.  The FTC typically uses this conference to lay out its enforcement priorities relevant to national advertisers and gives us all a peek into the crystal ball for the coming year.  So here’s what we heard.…
Does your business treat its FTC consent order like a big hippo in the room?  A recent ruling by the Second Circuit suggests it’s time to stop.  In Federal Trade Commission v. BlueHippo Funding, LLC, the Second Circuit joined others in holding that civil contempt sanctions for businesses caught violating the advertising prohibitions of FTC consent orders are measured based on the advertisers’ gross revenues for the advertised products or services.  While this decision…
Many advertisers who appear before the National Advertising Division assume that once an NAD challenge is filed there’s no turning back.  The NAD rarely declines an opportunity to review cases, and when it does reject a complaint it is usually for one of the narrow reasons stated in Section 2.2(B)(i) of the ASRC Policies and Procedures.  Those reasons include where the challenged advertising is local in nature, subject to pending litigation, exceedingly technical, or…
The United States Supreme Court paved the way today for competitors to challenge FDA-regulated food and beverage labels under the Lanham Act.  The Court’s opinion in POM Wonderful LLC v. The Coca-Cola Co. is the latest chapter in a long-running feud between POM Wonderful and Coca-Cola, which arose in 2008 when POM accused Coke of mislabeling one of its fruit juice blend products by prominently displaying the words “pomegranate blueberry” despite the product consisting…
Purveyors of mass-retail food products may have a new reason to rejoice this holiday season. On December 2, the U.S. District Court for the Central District of California, in Hernandez v. Chipotle Mexican Grill, Inc., quietly issued a three-page In Chambers Order denying class certification in a false advertising action challenging Chipotle’s claim that its products contain “Naturally Raised” meat. The class certification denial alone is notable given California’s famously broad consumer protection laws. Even…
This week we are planning to post a series of blogs looking at NAD procedural issues.  For advertisers, how NAD works can sometimes be as important as what NAD decides.  This first posting, however, pertains to the intersection between the NAD and the federal courts.  The evidentiary value of an opinion by an advertising self-regulatory body like the NAD is an issue that has received relatively little attention.  Although NAD is designed to adjudicate advertising…
The Supreme Court announced on Monday that next term it will consider what is required to establish standing to sue for false advertising under Section 43(a)(1)(B) of the Lanham Act.  Section 43(a), on its face, creates a cause of action for “any person who believes that he or she is or is likely to be damaged.”  The courts, however, have traditionally interpreted this language narrowly to provide standing only for business entities facing commercial or…
Last year, the Supreme Court of Canada’s much-anticipated Richard decision signaled a shift in Canadian consumer protection law and a rejection of the traditional “buyer beware” standard.  What the Richard decision means for businesses marketing products on both sides of the border remains an open question, although for the time being caution should be exercised when making implied claims to Canadian audiences or using disclaimers in Canadian marketing materials. At the same time, it is…