The FTC Pressures Press Interactions, Defies Commercial Speech Doctrine

by Kelley Drye & Warren LLP

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 that it filed earlier this year against marketers of green coffee products. That case is closely related to another case involving the unpaid appearance of a health foods commentator, Lindsay Duncan, on the Dr. Oz show. The FTC has alleged that the appearance by Duncan on the television program constituted commercial speech that is subject to the FTC’s advertising jurisdiction. That allegation appears to be part of a growing trend at the FTC to attempt to reach unpaid media interviews and appearances. This trend is troubling in that it is at odds with Supreme Court precedent and threatens companies’ ability to participate in news interviews, talk shows, or other media interactions.

Four main principles emanate from the Supreme Court precedent defining commercial speech.

  1. Early cases like Virginia Bd. of Pharmacy and Bates provided the foundation that commercial speech is “speech proposing a commercial transaction.”
  2. Cases like Bolger and Zauderer built on that foundation, finding that whether a publication “proposes a commercial transaction” depends on circumstances such as the speaker’s potential economic motivations and whether a specific product is identified.
  3. Cases like Bolger and Zauderer also found that if speech  proposes a commercial transaction, it will normally remain commercial speech even if it touches on matters of public debate. In Zauderer, for example, the Court held that a print advertisement by a law firm remained commercial speech even though it discussed the potential hazards of an intrauterine device.
  4. Finally, two later cases, Riley and Fox provided the caveat that if commercial speech is “inextricably intertwined” with fully protected speech, it will be treated as fully protected. The “inextricably intertwined” standard will likely not be met by an advertiser voluntarily choosing to mix product information and discussions of matters of public debate. Rather, the mixing of types of speech likely must be something more akin to the facts of Riley in which a state law interjected a mandatory commercial disclosure into charitable solicitations, which are otherwise fully protected speech. The Court, in that instance, treated the whole of the speech as fully protected.

In recent years, the FTC has addressed the definition of commercial speech in only two litigated cases. Each of the Commission decisions – Daniel Chapt. One and FTC v. POM – incorporated only the standards from cases like Bolger and Zauderer without acknowledging or integrating at all the “inextricably intertwined” standard. This omission continues to be apparent in actions like the those against green coffee marketers, where the FTC readily identifies media appearances and interviews as commercial speech subject to its standards for advertising.

In sharp contrast to the FTC’s actions, several courts hearing Lanham Act and other false advertising cases have largely found that media interviews are not commercial speech. The courts have rested their holdings on the “inextricably intertwined” standard from Riley and Fox. For instance, in a Lanham Act case by a taxi cooperative against Uber, a district court in California allowed the case to proceed as to an Uber website and blog, but not as to statements by Uber representatives published in news media. The court held that “[b]ecause the challenged statements are ‘inextricably intertwined’ with the news reporters’ coverage of a matter of public concern, i.e., whether Uber is safe for riders, they cannot constitute commercial speech actionable under the Lanham Act.” The court observed, “Statements made to the media and published in a journalist’s news article concerning a matter of public importance are not commercial speech, and are protected under the First Amendment.” The Second Circuit reached a similar decision in a case involving statements in media by an art dealer, and another court in California reached a similar decision in a case involving statements in media by an product endorser.

Companies have a right to direct comment on matters of public debate. In participating in media interviews and televisions appearances, companies should be aware of the FTC’s prior actions and seek creative ways to maximize the protections of relevant Supreme Court standards and minimize the risk of enforcement. The same commercial speech standards also apply to companies’ use of social media and should be carefully considered in that context, as well.  I spoke about this topic recently at a symposium sponsored by the Food & Drug Law Journal.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kelley Drye & Warren LLP | Attorney Advertising

Written by:

Kelley Drye & Warren LLP

Kelley Drye & Warren LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.