Advertising & Marketing Law Blog

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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…
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, particularly online and on mobile apps, where age screens help…
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…
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, were uniquely positioned to…
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. The revision…