Sometimes advertising is like real estate, where the three most important things are: location, location, location. In advertising, it is often: context, context, context. And never more so than with puffery.

Two recent National Advertising Division (NAD) decisions provide a useful reminder that what an advertiser puts around superlative claims—that is, the context—is key to determining whether the claims are mere puffery or require substantiation. In advertising law, puffery generally refers to exaggerated or subjective claims that consumers would not reasonably understand as objectively provable.

The two decisions also show how easily context can change the meaning of a claim. Ratings, reviews, or measurable product attributes can turn what looks like harmless boasting on its own into a claim that requires substantiation.

Continue Reading NAD Puffery Decisions Show Why Advertising Context Matters

Companies may spend significant time and resources carefully drafting their online terms and conditions, but those terms will not do much good if consumers are not adequately put on notice of them. A recent Ninth Circuit decision provides another reminder that courts will look closely not only at what an online disclosure says but also at how and where it appears.

In Schlueter-Beckner v. SimpliSafe, Inc., consumers filed a putative class action relating to their purchases of SimpliSafe home security systems and monitoring services. SimpliSafe moved to compel arbitration based on its online Terms of Sale and Terms of Service. Consumers encountered those terms at two different points—when purchasing the hardware and when later enrolling in a trial of SimpliSafe’s alarm-monitoring services.

Continue Reading Online Terms and Conditions: Why Presentation Matters

California has joined New York in regulating the use of AI-generated human performers in advertising. Gov. Gavin Newsom signed Senate Bill 1050, which requires advertisers to clearly and conspicuously disclose when an advertisement prominently features a “synthetic performer.”

The law applies broadly to audio, video, audiovisual, and digital advertisements disseminated through virtually any medium, including online platforms, where the communication is intended or reasonably expected to induce the purchase of goods or services.

Continue Reading California Enacts AI Advertising Disclosure Requirement for Synthetic Performers

The Federal Trade Commission’s Bureau of Consumer Protection (BCP) has announced a new program that gives businesses and industry groups a new way to seek guidance about ambiguities in FTC rules.

How the FTC Rule Guidance Program Works

Under the new BCP Rule Guidance Program, interested stakeholders can submit questions identifying a “genuine ambiguity” in an FTC rule, a substantive conflict between an FTC rule and another statute or rule, or another significant issue with a Commission rule. If BCP concludes that the issue warrants guidance, staff may issue a response that will be made publicly available.

This could be a useful development for businesses confronting FTC rules that leave important compliance questions unanswered. Rather than waiting for an enforcement action to learn how staff interprets an ambiguous provision, businesses and industry groups now have a mechanism for putting the issue directly before BCP.

Continue Reading New FTC Rule Guidance Program Offers Businesses Answers—and Risks

The decision reaches beyond competitor false advertising claims, with potentially significant implications for FDA, FTC, state consumer protection, and other regulatory enforcement.

Executive Summary

The Tenth Circuit’s decision in KetoNatural Pet Foods, Inc. v. Hill’s Pet Nutrition, Inc. may ultimately be remembered less for what it says about pet food than for what it says about hyperlinks.

For years, many companies operated under an informal assumption—sometimes referred to as the “two-click rule”—that they could avoid liability for third-party claims so long as those claims appeared on another website that consumers had to navigate to independently. The Tenth Circuit has substantially undermined that assumption. The court held that a company’s own commercial speech may include third-party content that it intentionally incorporates through hyperlinks and curated references when those materials function as part of the company’s promotional message.

Continue Reading Tenth Circuit Rejects the “Two-Click” Safe Harbor: Hyperlinks and Third-Party Content May Create Advertising and Regulatory Liability

The Federal Trade Commission (FTC) is seeking public comment on a proposed enforcement policy statement regarding personalized pricing—the practice of using individual consumer data to set prices according to how much the consumer appears willing to spend.

Stopping short of prohibiting personalized “surveillance” pricing, the FTC’s draft statement contends that undisclosed price personalization can deceive, mislead, and harm consumers in violation of Section 5 of the FTC Act. Interestingly, the policy statement appears to build on work begun in the Biden administration under then-FTC chair Lina Khan’s leadership. The statement also appears in conflict with the Trump administration’s “anti-regulation” approach. 

Continue Reading FTC Targets Undisclosed Personalized Pricing Practices

Social clipping has become one of the fastest-growing social media marketing strategies because it helps long-form content reach much larger audiences. Instead of relying on platform algorithms to promote an entire podcast, livestream, webinar, or interview, brands and creators encourage people to “clip” short, engaging moments and post them across social media platforms. In addition, many creators now pay freelance “clippers” to produce and distribute this content, turning virality into a structured marketing strategy rather than a matter of luck. But what are the legal risks involved with clipping?

Because clipped videos often look like authentic fan content, even when they are part of paid marketing campaigns, they blur the line between independent expression and advertising. So, are existing advertising rules flexible enough to cover social clipping?

Continue Reading Social Clipping and Influencer Marketing: Key Legal Risks

Making environmental marketing claims is already difficult. Between California’s evolving requirements, the Federal Trade Commission’s (FTC) Green Guides, and a growing number of state laws, even well-intentioned companies can struggle to determine what they can say on product packaging.

Congress is now trying to simplify things. On August 7, Rep. Lou Correa (D-Calif.) and Sen. Jeff Merkley (D-Ore.) introduced the Truth in Labeling Act of 2026, which would establish national standards for claims such as “recyclable,” “compostable,” “reusable,” and “refillable.” The Environmental Protection Agency (EPA) and FTC would develop the technical standards and standardized on-package labels.

Although the stated goal is greater consistency, it is unclear whether the bill achieves that goal.

Federal Environmental Labeling Meets State Laws

The bill does not broadly preempt state environmental labeling laws. Instead, it largely preserves them, meaning the federal requirements would operate as a baseline rather than a single nationwide standard.

That means complying with the federal law would not necessarily protect companies from California laws such as SB 343 or AB 1201. Companies selling nationally could still find themselves confronted by multiple, overlapping regulatory regimes.

The bill also would diminish the role of the FTC’s Green Guides. Congress expressly describes the current guides as outdated and would replace much of their flexible guidance with statutory requirements. The FTC would remain the primary enforcement agency, but many of today’s Green Guides analyses would give way to more prescriptive rules. 

This will likely present conflicts with state laws that explicitly instruct courts to give deference to the FTC’s guides and interpretations when determining violations under state consumer protection and advertising laws.

One notable change involves Resin Identification Codes. Plastic products could continue using Resin Identification Codes, but the familiar chasing-arrows symbol could only be used if the material qualifies as recyclable. That distinction is intended to reduce consumer confusion, but it may also require new packaging, molds, or state-specific artwork for many companies.

Defining Recyclable Packaging Raises Difficult Questions

Much of the bill’s practical impact depends on future EPA and FTC rulemaking. For example:

  • What counts as an “established recycling program” if a material is accepted curbside but routinely sorted out or rejected downstream (given the wide variety of recycling programs, as well as their effectiveness, it seems difficult to conclude as a national definition)?
  • How much diligence must a producer conduct before it can conclude that a “responsible end market” exists, and what happens if that market later disappears (revising package artwork can take six months to a year, which seems like a long time to risk being out of compliance)?
  • What does “where the item is sold” mean for national or online sales when calculating the bill’s recycling thresholds (and how do online sales play into this)?
  • Who is the “producer” responsible for substantiating the claim when multiple parties are involved, as with private-label goods, imports, contract manufacturing, or co-packing?

These questions will likely require significant clarification.

The bill also may create tension with multiple state Extended Producer Responsibility (EPR) programs. A package could receive favorable treatment under an EPR program because it is considered recyclable, while still failing the federal standard needed to advertise that recyclability to consumers. Companies could therefore face the awkward choice between obtaining EPR benefits and making consumer-facing environmental claims.

The proposal requires evaluating individual package components, including caps, sleeves, liners, coatings, and adhesives. Even relatively minor design changes could affect whether a recyclability claim remains accurate. The bill also excludes waste-to-energy processes from the definition of “recycling,” which has significant implications for certain plastics and emerging recycling technologies.

Greenwashing Rules Could Reduce Consumer Guidance

The bill is designed to reduce greenwashing and create more consistent environmental marketing standards. Ironically, however, it may also make it harder for companies to communicate accurate disposal information. Companies would need to substantiate claims using collection, processing, commercial value, and end-market data that they do not control, and that can change over time. If businesses decide the legal risk is too great, consumers could end up receiving less guidance about how to dispose of products responsibly.

One final point bears watching. Much of the proposed legislation appears to borrow from the same policy approach reflected in California’s SB 343. But SB 343 itself is currently on uncertain footing. In California League of Food Producers v. Bonta, a federal district court recently issued a preliminary injunction blocking enforcement of the law after concluding that the challengers were likely to succeed on their claims that key provisions are unconstitutionally vague and that the restrictions likely violate the First Amendment. The case remains pending, and California may ultimately prevail.

California SB 343 Offers a Warning

That raises an obvious question. If Congress ultimately enacts a federal version of many of these same concepts, will it survive similar constitutional scrutiny? The proposed Act differs from SB 343 in important respects, so any challenge would need to be evaluated on its own terms. But the ongoing SB 343 litigation serves as a reminder that aggressive regulation of environmental marketing claims is far from settled. Even if this bill becomes law, it may not be the final word.

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Continue Reading Truth in Labeling Act Could Reshape Environmental Marketing Claims

The term “negative option” generally references subscriptions, automatic renewals, continuity plans, or other programs where consumers continue to be charged unless they cancel.

However, a recent New York federal court held that unless a consumer unchecks a box, a one-time shipping protection fee that is automatically added to that consumer’s cart can also be a “negative option” under ROSCA.

The decision could significantly expand the reach of ROSCA, both by applying the law to a one-time add-on fee and by giving private plaintiffs a potential avenue to pursue alleged ROSCA violations under California law. The ruling could have broader consequences for common e-commerce checkout practices that require consumers to affirmatively decline optional charges.

Continue Reading One-Time Shipping Protection Fee May Trigger ROSCA, Court Rules: A Fast VAST Update

A Utah federal judge recently dismissed Xlear, Inc.’s lawsuit challenging the Federal Trade Commission’s (FTC) long-standing requirement that advertisers substantiate health-related claims, finding that Xlear’s challenge was not ripe for judicial review. Because Xlear could not identify a final agency action that had a concrete impact on Xlear’s advertising, the court concluded that Xlear’s dispute was hypothetical and based on “abstract disagreements.”

As previously discussed, Xlear argued that the FTC’s substantiation standard exceeds the plain language of Sections 5 and 12 of the FTC Act and that the Supreme Court’s decision in Loper Bright—scaling back court deference to agency interpretations of statutes—undermined prior decisions interpreting the FTC Act to impose the substantiation requirement. The court, however, refused to reach the merits of Xlear’s challenge and dismissed the case without prejudice for lack of subject-matter jurisdiction.

Although the decision leaves the FTC’s existing substantiation framework intact, it does not resolve the broader question of whether that framework exceeds the agency’s statutory authority. Xlear’s Loper Bright argument may ultimately prove more consequential in a future FTC enforcement action, as courts continue to grapple with the scope of the agency’s authority and the deference owed to its interpretation of the FTC Act.

Continue Reading Xlear Challenge to FTC Health Claims Substantiation Standard Dismissed