Category Archives: Claim Substantiation

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Best to Leave Cherry Picking to Cherry Farms: Regulators Revive Lawsuit Challenging Data Used to Support Memory Improvement Claims

Three things to remember when making claims: always ensure that you have the appropriate substantiation—I forget the other two. Last week, the Second Circuit issued an order vacating the Southern District of New York’s dismissal of an FTC complaint alleging that Quincy Bioscience falsely advertised a memory supplement, known as Prevagen. A little background: Quincy … Continue Reading

Ninth Circuit Affirms FDA Preemption in Tossing Vitamin E Supplement Case

There is no denying that, at times, the express claims made on dietary supplement labels may seem to convey a broader implied claim to the consumer regarding the supplement’s performance benefits. While that may be true, last month the Ninth Circuit confirmed that plaintiffs cannot successfully allege that a lawful “structure/function” claim misleadingly implies that … Continue Reading

FTC and FDA Issue Warning Letters to Supplements Companies

Earlier this week, the FTC and the FDA announced a joint effort to combat unsubstantiated health claims in the supplement space. In three warning letters—to Gold Crown Natural Products, TEK Naturals, and Pure Nootropics, LLC (collectively, the “Companies”)—the agencies explain that certain efficacy claims may lack competent and reliable scientific evidence for support. Specifically, the … Continue Reading

But Wait, There’s More! . . . Litigation: Federal Court Sustains Lanham Act Claims Against Allegedly False “As Seen On TV” Advertising

Many retailers carry products with the phrase “As Seen on TV.” What if a product bearing that phrase, however, had not actually been seen on TV? A recent case in federal court in the Southern District of New York ponders that question. In an advertising war between copper cookware competitors, plaintiff Emson sued its competitor … Continue Reading

New Faces, Same FTC

Recently, we wrote about new faces at the FTC, which, for the first time in its history, has five new Commissioners in a calendar year. This unprecedented change has cast some uncertainty on how the FTC will approach consumer protection enforcement. Recent actions by the Commission, however, indicate that despite new leadership, the Commission’s focus … Continue Reading

FTC Stems Doc’s Stem Cell Claims

The Federal Trade Commission (“FTC”) recently settled a case against a physician and his two clinics over allegedly deceptive and unsubstantiated claims relating to their “amniotic stem cell therapy.” The physician, Dr. Bryn Jarald Henderson, frequently appeared in his companies’ advertisements and claimed that this therapy, which purported to use stem cells derived from amniotic … Continue Reading

Recent NAD Decision Largely Rejects Puffery Defenses and Consumer Testimonials that Disparage Competition

It seems like we (and the NAD) can’t get enough of “best.” In a recent case, the National Advertising Division (NAD) ruled that the advertiser, Mahindra USA, Inc., could not claim its products were superior without reasonable evidence. Deere & Company, Inc. challenged Mahindra’s tractor advertisements as unsubstantiated superiority claims. Mahindra’s ads included “Best” claims … Continue Reading

Simply the Best, Better Than all the Rest: Superiority Claims and Substantiation

Do you have the best wireless provider? If so, best in what sense—the best contract, the best devices, the best connectivity, the best value? That was the issue NAD recently addressed when it recommended that T-Mobile discontinue its “Best Unlimited Network” claim. AT&T challenged T-Mobile’s tagline in a recent NAD case, arguing that it was … Continue Reading

What’s the Federal Trade Commission Been Up to Recently?

A change in administration inevitably raises questions regarding the priorities and direction of federal agencies. To help set the record straight, Lesley Fair, a Senior Attorney with the Federal Trade Commission’s (FTC or Commission), Bureau of Consumer Protection, reminded us during last week’s NAD Annual Conference that the FTC has kept quite busy over the last … Continue Reading

NAD Lashes Out Over Use of Stale Market Share Data for a Best-Selling Claim

I love a good mascara case. And it’s been too long. The last time NAD looked at mascara, it was monitoring challenges over whether celebrities in mascara ads were merely spokesmodels or product demonstrations and concluded the latter. (See here and here and an earlier blog I wrote on this topic.) NAD recommended clear disclosure … Continue Reading

FTC’s Warning on Green Paint Claims Required a Second Coat

As we previously blogged, the FTC went after several paint companies (Benjamin Moore, ICP, YOLO and Imperial Paints) for advertising that their paints were VOC-free when that claim was true only before colors were added to the paint. Time and technology march on, and several manufacturers thought they had solved this problem, proclaiming boldly that … Continue Reading

NY AG Doesn’t Miss a Beat, Settles Three Cases with Mobile Health App Developers

As we have written before, mobile apps geared toward health and fitness have become increasingly popular—and an increasingly popular target for regulators. This makes sense. Health and fitness apps can pose a serious risk if consumers rely on them for personal health information that turns out to be inaccurate or misleading. And the risk goes … Continue Reading

The “More Muscular” Buy American Policy Involves a Waiting Period

Earlier this month, Venable reported on the Trump administration’s intent to make the federal government’s procurement preference for domestic products (i.e., the body of “Buy American” laws that have been around in some form or another since 1933) even “more muscular” by moving forward with a “new policy” that is “based on the twin pillars of maximizing Made in … Continue Reading

Who Says Cease and Desist Letters Have To Be Dull

Everyone dealing with advertising substantiation has been on the sending or receiving end of a demand letter that challenges the basis for an advertising claim. These letters usually follow the same format. The letter will identify the advertising claim at issue, explains the problem with the claim, and provides a reasoned explanation for the sender’s … Continue Reading

FTC, New York AG File Complaint Against Marketers of Dietary Supplement Prevagen

Have you seen an ad like this (we have, more times than we can remember): “Ever walk into a room and forget why? Spend extra time looking for your car keys or purse? Have trouble remembering names or faces?” If the answer is yes, the dietary supplement Prevagen may be just what the doctor ordered. … Continue Reading

The FTC Weighs in Further on All Natural Claims

At last year’s Kennedy Center Honors, Aretha Franklin brought down the house and brought President Obama to tears with her rendition of Natural Woman. Marketers relying on “all natural” claims also may feel like crying these days. We’ve blogged frequently about natural claims; see this recent post. Much of the misery in this area results … Continue Reading

Deceptive Claims for Health App and Endorsements by Employees Raise FTC’s Blood Pressure

As 2017 quickly approaches, and consumers look for gift ideas or help with their New Year’s resolutions, “apps” that focus on fitness and health are increasingly popular. A recent FTC settlement against Aura Labs, Inc. (“Aura Labs” or “Aura”) and its principal, for allegedly making deceptive claims regarding the accuracy of its blood pressure measuring … Continue Reading

Court Finds 5-Hour ENERGY® Can Support Some but Not All of Its Claims

We have written several times about the FTC’s effort to rein in what it sees as unsubstantiated cognitive improvement claims (see prior blogs: Brain Training, Lumosity, Word Smart, and Your Baby Can Read). Well, the states appear focused on this segment, too. On October 7, 2016, after two years of litigation and a trial, Judge … Continue Reading

Ninth Circuit Decides Not To Stay Natural Case, But Read the Fine Print

When courts decide to stay actions to await FDA guidance in an area, it’s only natural that our ears perk up. Which has been going on a lot, with cases such as Kane v. Chobani and Swearingen v. Santa Cruz Natural, Inc. Last week, however, the Ninth Circuit Court of Appeals, which had previously opted … Continue Reading

FTC Aims To Understand Disclosures Through Consumer Testing – Announces Workshop Agenda

The Federal Trade Commission (FTC) just released its agenda for its September 15th workshop, “Putting Disclosures to the Test,” a full-day event aimed at improving the testing of disclosures by industry, academics, and the FTC. The workshop will review testing methodologies and examine how consumers perceive disclosures. Information will also be presented on how to … Continue Reading

Fake Seals and Phony Websites Promoting Dietary Supplements Equals FTC Lawsuit

Three things the Federal Trade Commission (FTC) really doesn’t like: deceptive claims about dietary supplements; deceptive certification or seal programs; and websites that look like editorial content, but are actually advertisements. Put them all together and what do you get? If you guessed a lawsuit by the FTC, you are correct! On June 16, the … Continue Reading
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