Advertising & Marketing Law Blog

Foley Hoag’s advertising and marketing legal team brings deep experience and a long, successful record to the increasingly complex legal landscape in which advertising claims are made and evaluated. Our Advertising and Marketing Practice provides a broad range of regulatory, advisory and disputes-oriented representation around the promotion of goods and services.

Latest from Advertising & Marketing Law Blog

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. Despite this, those seeking to partake…
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. In…
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…
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. Class certification decisions in these cases have often critically depended…
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.  When it identifies…
The La Choy Dragon, from a 1960s product label. 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. America was a less diverse country then, and the people writing its laws and regulations were even more homogeneous. The names of the foods defined in the FDA’s regulations were those familiar to,…
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. commerce continue in operation, though at a…
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. CARU’s concerns focused on a sixty-second
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.…
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. As a…