False Advertising

News & Analysis as of

Amarin Pharma v. FDA – More Briefs Filed Regarding Off-Label Promotion And The First Amendment

Our prior posts looked at the Amarin Pharma, Inc. v. United States Food and Drug Administration lawsuit, which raises issues regarding the First Amendment and how it applies to speech by drug and device manufacturers...more

Advertising Law - July 2015

Try, Try Again: Lawmakers Reintroduce Do Not Track Kids Act - A group of federal lawmakers reintroduced the Do Not Track Kids Act, a bill to amend the Children’s Online Privacy Protection Act (COPPA), with some changes...more

Insurance Recovery Law - July 2015

In the Context of a Bad Faith Claim, Insurer’s Defense That Coverage Denial Was Reasonable Put at Issue Otherwise Protected Attorney-Client and Work Product Communications - Why it matters: Recognizing the “conflicting...more

Ninth Circuit to False Advertising Class Actions: Drop Dead

On June 23, 2015, the Ninth Circuit in Cabral v. Supple LLC, — Fed. Appx. –, 2015 WL 3855142 (9th Cir. June 23, 2015) placed a significant hurdle in the path of false advertising class actions. Specifically, the Court held...more

Certification Unhealthy: Ninth Circuit Vacates Order Certifying Class of Dietary Supplement Purchasers

The Ninth Circuit vacated a class certification order issued by the Central District of California, finding that common issues did not predominate because plaintiff had failed to demonstrate that the alleged misrepresentation...more

Class Certification of California Price Advertisement Case Gives Cause for Concern

A recent class certification decision in California involving challenges to a retailer’s price comparison advertisements should prompt retailers to carefully evaluate their sale advertising practices. Whether comparing to...more

Ninth Circuit Reverses Class Certification In Joint Supplement Case Because Not All Class Members Saw Misrepresentation

The Ninth Circuit has held that a district court abused its discretion in certifying a class based on allegedly false health claims because not all class members saw the advertising. The Ninth Circuit said that the trial...more

The Pleading Bar In False Advertising Cases Has Been Raised

The Fourth Circuit recently issued a decision affirming a district court’s order dismissing a false advertising claim against GNC and Rite Aid relating to several supplement products containing glucosamine and chondroitin, as...more

Truth in Advertising - An Overview of Recent Contraventions of the Misleading and Deceptive Conduct Provisions of the Australian...

The Australian Competition and Consumer Commission (ACCC) continues to focus on misleading and deceptive advertising and communication strategies adopted by businesses selling products and services as an enforcement priority....more

Pumped Up Protein Powder Preemption

While some of us are naturally jacked up—have you seen Bexis in short sleeves?—others turn to supplements to build up their beach bodies. We are not talking about the injectables favored by 1970s East German Olympians or...more

Advertising Law - June 2015 #4

In Case You Missed It: FCC Adopts Significant Changes to TCPA Rules - Last week, in TCPA Connect, our newsletter devoted to cases and developments surrounding the Telephone Consumer Protection Act, we reported on the...more

Skinnygirl Margarita Class Rejected Again: Proof Fell Below Third Circuit’s High Bar for Ascertainability

A New Jersey federal court ruled that plaintiffs once again failed to demonstrate the ascertainability of a class of purchasers seeking to challenge “all natural” claims by the makers of Skinnygirl Margarita. Stewart v. Beam...more

All About That Base: Claim Against Fat Loss Supplement Maker Fails For Lack of Ascertainability

Adam Karhu bought a dietary supplement called VPX Meltdown Fat Incinerator (“Meltdown”) in reliance on advertising by Vital Pharmaceuticals, Inc. (“VPX”) that Meltdown would result in fat loss. Concerned that Meltdown did not...more

Public Statements Made by Pharmaceutical and Biotech Company Executives May Raise FDA’s Hackles if They Do Not Meet Basic...

For players in the highly regulated pharmaceutical and health care industries, it is common knowledge that manufacturers and distributors of FDA-regulated products are required to promote their products in compliance with the...more

May Court Decision Round-Up

Nedschroef Detroit Corp. v. Bemas Ents. LLC, Case No. 14-10095, 2015 WL 2453511 (E.D. Mich. May 22, 2015). U.S. District Judge Linda V. Parker granted summary judgment in favor of plaintiff Nedschroef Detroit Corp...more

Unlimited Means Unlimited: FCC “Throttles” AT&T Mobility for $100M

The FCC plans to fine AT&T Mobility $100M for misleading its customers about unlimited mobile data plans, alleging that AT&T severely slowed down the data speeds for customers with unlimited data plans. Further, the agency is...more

Procter & Gamble Must Say Goodbye to Proposed Amended Claim against Hello, while Hello Says Goodbye to Lawsuit

A lawsuit between Procter & Gamble (“P&G”) and Hello Products (“Hello”) – a toothpaste start up that promotes its products as “naturally friendly” – settled last week with the entry of a stipulated injunction, but Hello might...more

Advertising Law - June 2015 #3

CARU Stresses Out Over Claims for Spa Product - The Children’s Advertising Review Unit (CARU) was stressed out over implied claims made by The Maya Group for its Orbeez Body Spa. The product consists of an...more

Free* to Play Means Only If You Pay

As online gaming companies compete for business, they are offering customers increasingly large incentives to play on their websites, often in the form of deposit bonuses. These deposit bonuses allow players to play with the...more

Michael Jordan Defends His Right to Remain in Court to Protect His Likeness

On March 19, 2015, Wilson Elser published “Michael Jordan Denied Summary Judgment on His Right of Publicity Claim against Illinois Grocer,” an Alert concerning a case in which Michael Jordan was denied summary judgment on his...more

Amendments to the PRC Advertising Law: The Practical Implications for Brands

When Will Things Change - The existing PRC Advertising Law (Existing Law) entered into force on February 1, 1995 and has not been amended since then. With the advance of the internet and the fact that the average person...more

CFPB Releases New Reverse Mortgage Study Raising Marketing Practice Concerns

A recent study released by the Consumer Finance Protection Bureau (CFPB) regarding reverse mortgages suggests the CFPB is looking closely at the industry and the study may well be an omen of enhanced future enforcement...more

Getting the Deal Through - Advertising and Marketing 2015: Canada

Legislation and Regulation - What are the principal statutes regulating advertising generally? The principal federal statute regulating advertising in Canada is the Competition Act, which is a law of general...more

B.C. Court of Appeal Affirms Refusal to Certify Business Practices and Consumer Protection Act Claims

On June 3, 2015, in Marshall v. United Furniture Warehouse Limited Partnership (Marshall), the B.C. Court of Appeal dismissed the plaintiffs’ appeal from the application judge’s denial of certification of a proposed class...more

U.S. Senators Introduce Bill To Create Nationwide “Made In USA” Labeling Standard

On June 4, 2015, Senators Mike Lee (R-UT), Angus King (I-ME), Susan Collins (R-ME), and Deb Fischer (R-NE) introduced the Reinforcing American-Made Products Act of 2015 (Senate Bill 1518). This bill seeks to clarify that the...more

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