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The Quarter Ham: California Court of Appeal Affirms Judgment in Unfair Competition and False Advertising Case

You can still get your quarter ham “STARTING AT $23.99” from Honey Baked Ham, Inc. according to the California Court of Appeal in its unpublished decision on November 8, 2016. The Court of Appeal affirmed a trial court’s...more

California Court Issues Surprising Decision in Discount Advertising Case

On December 15, 2016, the California Court of Appeals in Los Angeles came to a surprising summary judgment decision in Sajid Veera et al. v. Banana Republic, LLC. The court held that plaintiffs who claimed they were misled...more

FTC, NY AG Bring Deceptive Advertising Lawsuit Against Dietary Supplement Marketer

The Federal Trade Commission (“FTC”) and the New York Attorney General (“NYAG”) have jointly filed a deceptive advertising lawsuit against the marketers of a dietary supplement. The lawsuit claims that the marketers of the...more

When the Strength of the Facts Cannot be Lifted – SDNY Dismisses Muscle Maker Slack-Fill Class Action

The Southern District of New York recently dismissed a putative class action against Cytosport, the maker of Muscle Milk protein powder. The plaintiff, Orlando Bautista, alleged that he bought a container of Muscle Milk...more

Retailers Face False Advertising Cases on Discounts From Original Prices, Rewards Points

Retailers that advertise sale prices in comparison with regular prices in California should ensure that the products were actually offered for sale at those regular prices within the preceding three months, in order to avoid...more

Update on Second Circuit Ruling in Church & Dwight v. SPD Swiss Precision Diagnostics “Weeks Estimator” Home Pregnancy Test...

Last month we summarized the Second Circuit’s important decision in a dispute between plaintiff-appellee Church & Dwight and its principal competitor, defendant-appellant SPD Swiss Precision Diagnostics, concerning SPD’s...more

FTC Unanimously Approves Settlement with Pet Food Manufacturer Over Alleged False Advertising

The Federal Trade Commission has approved a final Decision and Order settling a dispute with pet food producer Mars Petcare US, Inc. (“Mars”) related to advertisements for Mars’ Eukanuba brand dog food. The settlement arose...more

Second Circuit Affirms Ruling that SPD Swiss Precision Diagnostics Falsely Advertised Clearblue Weeks Estimator Home Pregnancy...

In an important recent false advertising decision in a suit brought by home pregnancy test manufacturer Church & Dwight against its principal competitor SPD Swiss Precision Diagnostics, a Second Circuit panel unanimously...more

Advertising Law - November 2016 #2

Advertiser’s Claims for Sex Supplement Too Vague for Lawsuit - An advertiser’s claims were too vague to be actionable, a California federal court held when dismissing a false advertising class action. Jonathan...more

The FTC's Crackdown on Social Media #Ads

In the ongoing effort to reach the hearts and minds of consumers, brands are increasingly looking beyond the traditional media outlets of radio, print and television. The recent meteoric rise and diversity of social media...more

Don’t Forget About FTC Compliance: Substantiating Claims to Avoid Misleading Consumers

Life sciences companies regularly review their labeling and promotional materials to ensure compliance with Food and Drug Administration requirements. FDA makes its Warning Letters publicly available, and failure to correct...more

Advertising Law - October 2016 #2

No Shades of Gray in Order Banning Supplement Claims - In a case based on a referral from the National Advertising Division, the Federal Trade Commission obtained summary judgment and a final order against an advertiser...more

FTC Targets Auto Dealers, Alleges Deceptive Financing Practices

The Federal Trade Commission (FTC) has filed an action against nine auto dealerships and their individual owners in a California federal court that the FTC described as its "first action against an auto dealer for 'yo-yo'...more

A Step in the Right Direction: FDA Says It Will Refine Regulations on 'Healthy' Claims for Food

FDA recently announced that it will take a second look at its “healthy” regulations, and it is soliciting public comments on a dozen or so topics. Walk down any aisle at the grocery store and you will find foods...more

FTC Settles Supplement Maker Over Unsubstantiated Claims and Expert Endorsement

On October 5, 2016, the Federal Trade Commission (FTC) settled its case with Supple, LLC over certain advertising claims regarding its Supple joint supplement. Between 2011 and 2015, the company advertised (via social media,...more

Advertising Law - October 2016

Suit Over Block Voting on Reviews Moves Forward - A Lanham Act suit brought by a competitor over a company's efforts to minimize negative consumer reviews will move forward, a Utah federal court judge has...more

False Advertising Liability for Affiliate Marketing

The proliferation of e-commerce websites along with the rise of social media, blogging, and online communities has greatly increased the importance of affiliate marketing. Affiliate marketing allows an affiliate to earn a...more

A Diamond is Forever. What About Your Advertising Claim?

An advertising slogan like “A Diamond is Forever” may be eternal, but the same cannot be said about some comparative advertising claims. If a company advertises its product as superior to a competitive product, the ad claim...more

Advertising in MA: Can Consumers Bring Class Actions for ‘Deceptive’ Advertising that has Neither Deceived Nor Harmed Them?

If your company advertises and sells products in Massachusetts, it could be subjected to a class action lawsuit by Massachusetts consumers who purchased one of its products if the consumers can show that a reasonable person...more

Advertising Through Social Media: Ten Tips For FTC & NAD Compliance

Most modern advertising campaigns include social media components. In fact, it is not uncommon today to see products advertised exclusively on social media. For the most part, the same rules that govern traditional...more

A Wrinkle in Time: Anti-Aging Advertising Claims Unsubstantiated by Testing Methods

The National Advertising Division (NAD)’s annual conference is taking place later this month, so we are taking the opportunity to highlight some recent NAD decisions of interest.  This post addresses Intraceuticals LLC...more

Advertising Law - August 2016 #2

Electric Toothbrushes Battle It Out Before NAD - In a battle over electric toothbrushes, the National Advertising Division determined that Procter & Gamble can support superiority claims for its Oral-B models challenged...more

Lifestyle Blogging, Supplement Dust, and Third Party Liability

The NAD recently took a swipe at Goop, the lifestyle blog founded by Gwyneth Paltrow. To make “GP’s Morning Smoothie,” Goop had recommended using “dust” dietary supplements, such as Action Dust and Brain Dust, both sold by...more

Court Suggests Companies Can Be Liable as Soon as Claims Become Stale

It’s a common question. A company creates a product with a competitive advantage; it takes steps to substantiate a superiority claim; and, satisfied that it has met the legal standard, it bases an advertising campaign on that...more

The FTC Social Media Consent Order Against SmartClick

The FTC continues its efforts to combat deceptive social media advertising. In June 2016, the FTC brought an enforcement action against SmartClick Media LLC and its owner. The FTC alleged that SmartClick engaged in the...more

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