Commercial Speech

News & Analysis as of

The USPTO Says “Yes” But the TTB Says “No” To LSD

Government approval of commercial speech has been a hot topic of discussion by trademark nerds here and elsewhere in light of recent decisions regarding the Redskins and The Slants marks. As those decisions proceed up...more

FDA and Amarin Pharma Reach Milestone Settlement Allowing Off-Label Drug Promotion

A milestone Settlement Agreement was reached March 8, 2016 between the Food and Drug Administration and Amarin Pharma, Inc. that expressly allows Amarin to promote its drug product, Vascepa®, for unapproved – i.e.,...more

Advertising Law - March 2016 #2

SPECIAL FOCUS: Lord & Taylor Settles With FTC for Not Disclosing Native Ads - Less than three months after the Federal Trade Commission issued its December 2015 Policy Statement and Business Guide on native advertising...more

Eighth Circuit Tells Former NFL Players: Your Right Of Publicity Claims Are Preempted By The Copyright Act

The Eighth Circuit recently rejected three former NFL players’ appeal of a district court’s dismissal of their right of publicity claims, among other claims. John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White...more

8th Circuit Finds Copyright Act Preempts State Right Of Publicity Of Professional Athletes

In a recent case, Dryer v. Nat’l Football League, No. 14-3428, 2016 WL 761178 (8th Cir. Feb. 26, 2016), former National Football League (“NFL”) players (the “Players”) sued the NFL over the use of their name, image, voice,...more

Food Labeling: The GMO Edition

On February 22, a packed room of food technologists and cereal chemists in Minneapolis heard from a panel of speakers about the hot debate surrounding GMO-labeling, an issue that is unlikely to be resolved any time soon....more

Federal Circuit Rejects Disparaging Trademarks’ Ban on First Amendment Grounds

A December ruling by the Federal Circuit emphasized the value of commercial speech through trademark registration, and the case may have implications for the Washington Redskins. The NFL team’s Super Bowl dreams may be over,...more

2015: A Year-End Review of Litigation Using California’s Anti-SLAPP Statute

Annually, California’s Courts of Appeal and the Ninth U.S. Circuit Court of Appeals regularly issue several dozen published opinions interpreting California’s anti-SLAPP statute, Civil Procedure Section 425.16 et seq., and...more

Ninth Circuit Opens the Door to Relaxing Decades-Old Law Restricting Supplier-Paid Advertising in Retail Establishments

In a decision released on January 7, 2016, Retail Digital Network LLC v. Jacob Appelsmith, the U. S. Court of Appeals for the Ninth Circuit overturned 29-year-old precedent set in Actmedia Inc. v. Stroh, which held that those...more

Latest First Amendment Off-Label Notes - Has DoJ Finally Come Around?

As we mentioned before (when we provided a discount) Bexis spoke earlier this week at the ACI Promotional Review Summit on the “Brave New World . . . Post-Amarin” – that is to say, about the First Amendment and off-label...more

Ninth Circuit Opinion Calls into Question Constitutionality of California Tied-House Laws

On January 7, 2016, the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Retail Digital Network, LLC v. Appelsmith, overruling longstanding Ninth Circuit precedent concerning the legality of certain...more

In re Simon Shiao Tam - USCA, Federal Circuit, December 22, 2015

In case with potentially far-reaching effects, including on Washington Redskins’ ongoing legal battle to maintain federal trademark registration, Federal Circuit sitting en banc strikes down federal statute that permits...more

Checklist: Does the Anti-SLAPP Statute Apply?

An anti-SLAPP motion to strike is generally available when one of the causes of action in a case is based on an act of a person in furtherance of the person’s constitutional right of petition or free speech in connection with...more

Of Slants, Skins and Signs: Another Step Closer to the Showdown

In September, we discussed In re Tam and the potential for a showdown over the constitutionality of Section 2(a) of the Lanham Act. At that time, a panel of the Federal Circuit had recently upheld the PTO’s refusal to...more

Washington Redskins Haven’t Won Yet: Why the Constitutionality of Section 2(a) is Not Yet Final

What do Washington D.C.’s NFL team, the Redskins, and Mr. Tam’s rock band, The Slants, have in common? Both have enjoyed unexpected victories recently and both have been called “disparaging” by the Patent and Trademark Office...more

Advertising Law - December 2015 #2

Game's Over: Jordan, Grocers Settle Publicity Rights Suits - To avoid a second trial in litigation initiated by Michael Jordan challenging the use of his likeness in a commemorative issue of Sports Illustrated, the...more

The FTC Pressures Press Interactions, Defies Commercial Speech Doctrine

On Tuesday, the FTC joined the Department of Justice and several other federal agencies in announcing numerous recent and ongoing actions against dietary supplement marketers. The FTC, in its discussions, highlighted a case...more

First Amendment Notes: Amicus Briefs In Pacira & Application of IMS v. Sorrell

Here we discuss a couple of developments involving (actually or potentially) the application of the First Amendment to the FDA’s increasingly battered prohibition against truthful promotion of off-label use....more

Blog: Is A Lot More At Stake In The Conflict Minerals Case Than The Conflict Minerals Disclosure Rules?

An amicus brief filed in the conflict minerals case, National Association of Manufacturers, Inc. v. SEC, was submitted this week by a group of anti-smoking and other organizations dedicated to protecting public health: Truth...more

Going on Offense against State Deceptive Trade Practices AG Actions

We have posted many times about cases where a manufacturer of a regulated product is sued over alleged violations of a state consumer protection or deceptive trade practices act because of something allegedly amiss in the...more

"The Future of Government Regulation, Enforcement of Off-Label Promotion"

Three years ago, in United States v. Caronia, the U.S. Court of Appeals for the Second Circuit held that the Federal Food, Drug and Cosmetic Act (FDCA) neither prohibits nor criminalizes truthful, nonmisleading speech that...more

Pharma and Medical Device Industry Victory in Off-Label Marketing Decision

The U.S. District Court for the Southern District of New York recently held that the FDA may not constitutionally bring a misbranding action based on truthful and non-misleading off-label promotion of an FDA-approved drug,...more

Do Not Mess With Michael Jordan And His Right Of Publicity

After Michael Jordan was inducted into the Basketball Hall of Fame in September of 2009, Sports Illustrated ran a special issue to commemorate Jordan’s achievement and celebrate his career. The issue was to be sold in...more

Another Successful First Amendment Challenge to the Prohibition of Off-Label Promotion for FDA-Approved Drugs

The Free Speech Clause of the First Amendment prevailed in the latest challenge to the FDA's prohibition against marketing FDA-approved drugs for off-label (or non-FDA-approved) uses. Applying the Second Circuit’s...more

Newest FDA Newsletter from AGG

Once a month, AGG’s terrific FDA team publishes a newsletter updating readers on the latest regulatory news affecting food/drug companies–including those from Ireland and Northern Ireland. The August newsletter is here and...more

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