Category Archives: Claim Substantiation

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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

FTC Tells L’Oréal that Youth Code Is Not Cracked

Who doesn’t want young-acting skin?  We’re not talking about the way skin acted in the zits-on-picture-day years, but rather the dewy glow of innocence – the Code of Youth. L’Oréal USA, Inc. addressed our anti-aging desires in a popular line of ads for Lancôme Génifique and L’Oréal Paris Youth Code skincare products.  But this week … Continue Reading

Running Shoe Manufacture, Vibram USA Inc., Finds Itself Bare of Substantiation

Building buzz around your product is usually a good thing. But creating a product out of buzz not necessarily so. Vibram USA Inc., a company promoting their FiveFingers minimalist or barefoot running shoes, recently found this out the hard way thanks to some class action lawyers. Barefoot running has long had its advocates, dating back to … Continue Reading

“Torture Tests”‎ Must Be Consumer Relevant for Claims Support per NAD

The motor oil wars have given us advertising lawyers much to ponder, including whether to use industry standard or proprietary testing. A recent decision from NAD is a very definitive statement against use of torture tests to support ‎comparative claims. In this case the ad itself showed the test – two cars, each on a … Continue Reading

Come for the Game; Stay for the Commercials: Celebrities Dominate Super Bowl

Every year, we look forward to the Super Bowl.  For the commercials.  Our friends and family laugh at us, but they get it since advertising law is what we do.  This year, when the game did not prove to be an equal match up, after exhausting the wing and nacho bowl, many others turned to … Continue Reading

Concentrate on Protecting Your Brand Name – Use Dose of Caution When Including a Claim in Your Name

The FTC and the NAD require adequate substantiation for claims wherever they appear. There is typically a higher bar for when a company is required to change its trade name because it includes an allegedly unsupported claim, but it does happen. In other words, there is no “But it’s the name of my product” defense … Continue Reading
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