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Commercial Speech

Food & Beverage Litigation Update | October 2017 #3

by Shook, Hardy & Bacon L.L.P. on

FDA Warns Snyder’s-Lance About Iron Content Labels - The U.S. Food and Drug Administration (FDA) has sent a warning letter to Snyder’s-Lance, Inc. about the iron content of its Lance Toast Chee Crackers. The letter...more

WARNING! No warnings allowed to stop sales of sugary drinks

by Thompson Coburn LLP on

San Francisco’s ordinance that required warnings about the health effects of certain sugar-sweetened beverages was shut down by the federal 9th Circuit Court of Appeals (see also, 9th Circuit rejects argument that ‘No Added...more

City’s On-site and Off-site Business Signs Distinction Upheld - Ninth Circuit Says Code is Proper Regulation of Commercial Speech

by Best Best & Krieger LLP on

A City of San Francisco Planning Code section that distinguishes between “general advertising signs” and “business signs” was upheld last week by a federal appeals court. The U.S. Ninth Circuit Court of Appeals ruling...more

In Matal V. Tam, Scotus Rules Prohibition On Disparaging Trademarks Unconstitutional

The Asian American members of the band the Slants adopted that name to “reclaim” and “take ownership” of the derogatory term. The United States Patent and Trademark Office (“USPTO”) refused to register a trademark application...more

The Past, Present, and Future of Government Regulation of Off-Label Communications – Part 4

Picking up from my last installment of this series exploring the regulatory history of off-label communication, this post highlights some recent trends in FDA enforcement and guidance related to off-label promotion. Not...more

Ninth Circuit Panel Rejects Challenges to a California City’s Misleading Commercial Speech Ordinance - Local Governments’...

by Best Best & Krieger LLP on

Recently, the U.S. Ninth Circuit Court of Appeals affirmed local governments’ authority to adopt regulations that prevent the use of false or misleading statements in the solicitation or provision of services....more

Ninth Circuit Concludes No First Amendment Issue with California Ban on Paid in-Store Alcohol Advertisements

by Reed Smith on

Last month, the Ninth Circuit, sitting en banc, upheld a California “tied house” law prohibiting manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol...more

Both Sides Equal Under the First Amendment

by Reed Smith on

There’s a problem with attorney advertising in the prescription medical product space – but it’s not the one you normally hear us defense-side litigators kvetching about. Quite apart from its litigation-generating effects,...more

Of Slants, Skins, And Signs: Section 2(a) Prohibition of Disparaging Trademark Registrations Struck Down!

Well, that happened! According to the Supreme Court’s opinion in Matal v. Tam, Section 2(a) of the Lanham Act, which purports to prohibit the registration of marks that “disparage . . . persons,” is unconstitutional. ...more

Supreme Court Holds that First Amendment Protects Disparaging Trademarks

by Bass, Berry & Sims PLC on

This week, the U.S. Supreme Court emphasized the importance of broad free speech protection in striking down a statute that allows the U.S. Patent and Trademark Office (USPTO) to refuse registration of disparaging trademarks....more

The Past, Present, and Future of Government Regulation of Off-Label Communications – Part 3

This is Part 3 in my series exploring the history of FDA’s regulation of off-label communications, which has become newly relevant in light of the recent events highlighted in Part 1. In this installment, I continue...more

Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By ‘whey’ of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of...more

Preserving California’s Tied-House Rules - Ninth Circuit en banc decision upholds decades-old law restricting alcohol beverage...

On June 14, 2017, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, issued its decision in Retail Digital Network LLC v. Ramona Prieto, Case No. 13-56069, D.C. No 2:11-cv-09065-CBM-PJW. The decision rejects a...more

More Bad News for Uber, This Time From the Southern District of California

by Carlton Fields on

Uber’s attempts to defeat a false advertising lawsuit recently failed. The Southern District of California largely denied the ride share company’s motion to dismiss and motion to strike class allegations. ...more

US Supreme Court’s Ruling Bolsters Taxpayers’ First Amendment Right To Pass Through Fees (and Taxes)

On March 29, 2017, in a unanimous ruling, the US Supreme Court ruled that a New York statute, which prohibits identifying a surcharge to customers for credit card payments, regulates speech and is therefore subject to...more

Supreme Court of the United States Holds that New York Law Regarding Credit Card Surcharges Regulates Speech, Remands for Further...

by Bass, Berry & Sims PLC on

Last week, in a unanimous decision, the Supreme Court of the United States held that New York General Business Law Section 518, which provides that "[n]o seller in any sales transaction may impose a surcharge on a holder who...more

Michigan District Court Won’t Hear Lanham Act Claim Against Tinnitus Treatment Certifier

Last week, we covered a summary judgment decision holding that posts on the “Science-Based Medicine” blog were not “commercial speech” under the Lanham Act, and therefore the defendant in that case was not liable for false...more

Credit Card Surcharge Ban on Life Support after Supreme Court Decision

by Stoel Rives LLP on

The U.S. Supreme Court held last week that New York’s ban on credit card surcharging is a restraint on speech under the First Amendment. Expressions Hair Design v. Schneiderman, No. 15-1391 (U.S. Mar. 29, 2017). The case was...more

US Supreme Court: single-sticker pricing may be protected speech under First Amendment

by DLA Piper on

A unanimous US Supreme Court has ruled that the First Amendment applies to New York’s law regulating credit card surcharge fees, in Expressions Hair Design v. Schneiderman, No. 15-1391. The Court held that New York...more

U.S. Supreme Court Rules NY Surcharge Law Regulates Speech

by Bryan Cave on

The U.S. Supreme Court ruled last week that New York’s statutory ban on merchant’s surcharging customers who choose to pay for credit cards is a regulation of speech and is not merely a regulation of pricing conduct, as the...more

No Scrubs Permitted: Eleventh Circuit Affirms Blog Post Is Not Advertising Actionable Under Lanham Act

In an interesting recent opinion, the Eleventh Circuit held that a doctor’s blog post criticizing another doctor and his clinical practice could not form the basis of a Lanham Act claim because the blog posts were not...more

Missouri Church Wins Digital Sign Appeal

The Missouri Court of Appeals has ruled that the Kansas City, Missouri, Board of Adjustment abused its discretion in failing to grant a variance to Antioch Community Church (Church) to install digital components into its...more

The First Amendment Does Not Protect All Off-Label Drug Promotion

by Fish & Richardson on

FDA is considering making off-label promotion easier, consistent with recent case law. The drug and biologics industry is also proposing an ease up of FDA regulation, which would allow it to “responsibly” promote new drug...more

Five Important Themes to Watch in the Reform of FDA’s Off-Label Communications Policy

As we’ve previously reported, FDA has recently been forced to reexamine its legal position and enforcement policies related to drug and device manufacturers’ off-label communications. Although the Agency has for years...more

Supreme Court Set to Settle Dispute over Washington Redskins Trademark Registration

by Varnum LLP on

There has been another twist in the story of the long battle by Native American interest groups to obtain revocation of the U.S. registration of the infamous Washington Redskins trademark. This is another step in the 20-year...more

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