Commercial Speech

News & Analysis as of

Warning Labels Suit Not Suitable for Preliminary Injunction

In American Beverage Association v. City and County of San Francisco, No. 3:15-cv-03415-EMC, decided on May 17, 2016, Northern District Judge Edward Chen denied a preliminary injunction against enforcement of a San Francisco...more

Pro Te: Solutio - Vol. 8 No. 5

The Spring 2016 issue of Pro Te Solutio deals head-on with issues that are driving litigation in this modern era. And as it is with many issues, there are two sides to every story. The first topic we wrangle involves the...more

Another Off-Label Promotion Third Party Payor Case Lacks Causation

July in D.C. is hot and sticky. When scorching day follows scorching day, area residents look forward to evening thunderstorms, not just to water otherwise thirsty lawns and gardens but to cool things down. Lightning can be...more

Agreement Reached on Bipartisan Federal GMO Food Labeling Bill

Provides Practical, Mandatory Disclosure and Preempts State GMO Labeling Laws - Senate Agriculture Committee leaders reached agreement June 23, 2016, on a bill that would require food containing genetic material modified...more

Political Organizations File Suit Over Constitutionality of TCPA

American Association of Political Consultants, Inc. et al. v. Lynch, Civil Action No. 5:16-cv-00252 (E.D.N.C., May 12, 2016). On May 12, 2016, five politically based organizations filed a suit against Loretta Lynch, in...more

‘The Autumn Wind’ and the Right of Publicity

As a child of the 60’s and 70’s and an insatiable NFL football fan, I can still hear the swaggering voice of narrator John Facenda in the now-iconic 1974 NFL Films production “The Autumn Wind,” which has been dubbed The...more

Controversy on Controversy: Developments in First Amendment Doctrine Respecting Compelled Commercial Disclosures

The First Amendment is well known as a limit on state power to restrain speech. Attempts to censor a newspaper, film, or video game, or to limit discussion in a public forum, are subject to the most exacting — and often...more

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

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

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