Category Archives: Claim Substantiation

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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

Brain Training Advertisements May Need a Lesson in Advertising

Cognitive claims remain a top priority for the Federal Trade Commission (“FTC”) as the Commission continues to target claims that dietary supplements or learning programs can improve cognitive performance. The FTC just announced a proposed settlement with LearningRx Franchise Corp. (“LearningRx”) concerning the company’s marketing of its “brain training” programs. We have blogged about learning claims before, … Continue Reading

It’s Not Nice to Fool Mother Nature: FTC Takes Aim at “All Natural” Claims

While the Food and Drug Administration (FDA) is still considering whether to issue guidance over the use of the term “natural” in food products, the Federal Trade Commission (FTC) is steamrolling ahead this week with a flurry of settlements and a complaint over deceptive use of the terms “all natural” and “100% natural” in the … Continue Reading

FTC Settlement Sheds Light on Claims of Increased Cognition

It doesn’t take a genius to know that health claims are on the FTC’s radar.  In fact, at last year’s NAD conference, Commissioner Brill said that the FTC will prioritize enforcement of unsubstantiated health claims, such as cognitive claims.  We have blogged about learning claims before, including the Word Smart case.  However, Lumosity, which created … Continue Reading

Survey Says: NAD Panel Weighs in on Surveys

In contrast to a general emphasis on new data and new claims at the 2015 NAD conference, NAD staff attorneys, advertising lawyers, and survey experts took the time to weigh in about the emphasis NAD will continue to place on traditional best practices of consumer surveys for claim substantiation or challenge.  Although online surveys programs … Continue Reading

Getting Claim Substantiation Right

More, almost live blogging, from the NAD conference.  During the mid-morning hours yesterday, the conference group focused on strategies to get their claim substantiation right.  The panel of Kat Dunnigan (NAD); Rebecca Bliebaum (Tragon Corporation); Jay Goldring (Boots Retail USA, Inc); Spring C. Potoczak (Novartis Consumer Health, Inc.); and moderated by David Mallen (Loeb & … Continue Reading

A Recent Win for Helmet Marketer, But Anti-Concussion Claims May Continue to Cause Advertisers Headaches

A federal judge in New Jersey recently denied false advertising claims brought under the consumer protection laws of New Jersey, California, Arizona, Illinois, and Florida against Riddell, the leading manufacturer of football helmets in the U.S.  Standing alone, this is a welcome development for marketers.  But our loyal readers know that health claims attract enormous scrutiny … Continue Reading

The Saga of the Forbidden Fruit Part III

The long running saga of the FTC versus POM Wonderful took a major turn today as the D.C. Circuit affirmed in part and reversed in part the FTC’s Order that POM had made deceptive claims about its pomegranate juice products.   In 2010, the FTC sued POM alleging it had made false and unsubstantiated claims about the … Continue Reading

The FTC Speaks Softly But Carries a Big Stick – Do Paid Search Terms Go Under the Microscope?

Are paid search terms about to receive a lot more Federal Trade Commission (FTC) attention?  That’s the question you could be asking after the FTC last week announced a settlement with Nourish Life LLC.  Defendants marketed a dietary supplement called Speak that contains among other things omega-3 and omega-6 fatty acids, vitamin E and vitamin … Continue Reading

FTC Says Companies Have a Fat Chance of Getting Away With Deceptive Online Marketing in First ROSCA Case

A free trial of a weight loss pill is the best of both worlds, right?  Not according to the FTC, which recently brought its first Restore Online Shoppers’ Confidence Act (ROSCA) case against a group of marketers who advertised exactly that. Weight loss substantiation is old territory for the Commission.  ROSCA, however, is not.  The … Continue Reading

FTC’s Letters to Retailers Regarding Concussion-Related Products Has Us Scratching Our Heads

It is almost football season and the FTC tries to stay seasonal; around this time in 2012, it announced a settlement with football mouthguard manufacturer Brain-Pad regarding unsubstantiated concussion prevention claims.  Subsequently, the FTC has sent warning letters to other manufacturers of sporting equipment regarding concussion prevention claims.  This year, however, the FTC has called … Continue Reading
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