Category Archives: Claim Substantiation

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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

Ad Agency Liability Lives: The FTC Holds Ad Agency Liable for Deceptive Advertising

A recent settlement over deceptive advertising with the FTC may have advertising agency executives and their attorneys asking the same question as the bystander in the challenged advertisement: “Oh man, no way. Are you kidding?” For years advertising agencies have seemed to fly blissfully under the FTC’s radar, but the FTC’s settlement with Nissan North … Continue Reading

Food (and Dietary Supplement) Fight at the FTC

In a town not particularly well-known for its nonpartisanship or collegiality, we have always thought the FTC stood (and stands) out for its remarkable ability to typically operate in a consensus-like manner.  However, a clear split appears to be emerging at the Commission over the application of the “competent and reliable” scientific evidence standard. It’s … Continue Reading