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
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
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
A couple of years ago it felt like we were blogging about developments in cases involving “up to” claims up to 3x more often than just about any other topic. To summarize the upheaval, for many years there were cases allowing an up to claim if an “appreciable number” of consumers could enjoy the claimed … Continue Reading
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
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 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
We’re a bit later than usual with our blog on the Super Bowl ads because, well quite frankly, it took us awhile to recover from the shock of how the game ended (we’ll leave that ambiguous as to whether we were shocked in a positive or negative way because we love all our clients and … Continue Reading
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
As our last blog about Attention Deficit Disorder (ADD) claims strove to be focused, we will aim to make this speed of action blog short and sweet. This has been a popular claim at NAD this year in the over-the-counter (OTC) space. Here, cold medicine giants Pfizer with its Robitussin cold and flu line took … Continue Reading
Many of us struggle with clarity and focus on how much specificity is best in a claim. If you name a competitor in a superiority claim, you are likely to awaken his/her wrath. But if you use a more vague general superiority claim, you may be taking on a burden to substantiate your claim as … Continue Reading
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
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
As we blogged from the NAD conference, (or at least we think we did) FTC Chairwoman Edith Ramirez named cognitive claims as an area of national advertising enforcement priority for the FTC. These can be claims from foods or dietary supplements or learning products to boost the brain power in adults or kids. This is … Continue Reading
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
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
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
At the FTC if a party is investigated and the FTC believes ad claims were not substantiated, a company can settle and typically commits not to repeat the claims at issue unless there is adequate substantiation. In the case of health claims, of course, this is competent and reliable scientific evidence that may be defined … Continue Reading
The FTC scored two recent victories in advertising cases litigated in California, and, in both cases, the court accepted the FTC’s view of the world with little exception. You can expect that the FTC will cite to these cases frequently going forward. Lights of America In 2010, the FTC sued Lights of America Inc. and … Continue Reading
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
We will first tell you what you need to do if you are engaged in native advertising and wish to avoid coming within the busy lens of the NAD monitoring program. For those who are interested in the debate around this issue, we will then tell you why we, respectfully, disagree with the NAD’s views … Continue Reading
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
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
It is common for a seller to offer a line or a series of products to address a particular need, and sometimes to bundle these products as a set. We see this, for example, with beauty products where one anti-aging powerhouse is packaged with a cleaner and toner. We also see portfolio companies advertising a … Continue Reading
