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It’s October and, in addition to playoff baseball, that means the Supreme Court is back in session. The Court has chosen to hear arguments in two cases with significant ramifications for advertising law. Both cases will impact the risks and liabilities faced by companies accused of false or misleading advertising practices nationwide.

In Medical Marijuana, Inc. et al. v. Horn, the Court will decide whether plaintiffs may bring suit under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to recover economic damages resulting from personal injuries. In Dewberry Group v. Dewberry Engineers, Inc., the Court will determine whether the Lanham Act permits district courts to penalize corporate subsidiaries for trademark infringement.Continue Reading Medical Marijuana and Dewberry: The Supreme Court Tackles RICO and Lanham Act Claims

Consumer products regulated by the U.S. Consumer Product Safety Commission (CPSC) may soon be denied entry into the United States unless the importer of record electronically files a detailed product certification with the U.S. Customs and Border Protection (CBP). In late 2023, the CPSC published a proposed CPSC rule that will require that importers of regulated consumer products eFile Certificates of Compliance at import.

Since 2008, importers and domestic manufacturers have been required to maintain Certificates of Compliance and to provide distributors and retailers a reasonable means to access the certificate, but the certificates did not need to be filed at import. In June, the CPSC expanded its beta program testing the eFiling system and issued an “eFiling Quick Start Guide,” which provided additional information about the program and predicted that “full implementation of eFiling will occur in or around 2025.”Continue Reading Get Ready to Comply with CPSC’s Upcoming eFiling Requirement

Join us over the next few months as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of product safety and recalls in this week’s episode. 

On rare occasions, notwithstanding the best of engineering design and testing, a consumer product contains a manufacturing or design defect, or a failure of adequate instructions, that results in its being unsafe for use and a potential for causing bodily harm. This most often reveals itself when consumers bring the matter to the attention of a manufacturer, retailer, or direct-response marketer, or upon receipt of a notice from the Consumer Product Safety Commission (CPSC).Continue Reading Product Safety and Recalls: An Excerpt from the Advertising Law Tool Kit

Manufacturers need to be careful in the New Year to start complying with new laws in New York and California expanding consumers’ right to repair certain products. California joined the right-to-repair movement with the passing of its Right to Repair Act, effective July 1, 2024.

The law will require electronic or appliance product manufacturers to provide documentation and functional parts and tools to product owners and service and repair facilities/dealers, on fair and reasonable terms, to facilitate the diagnosis, maintenance, or repair of a product. These requirements last for at least three years for products priced between $50 and $99.99 and for at least seven years after the product was last manufactured for products priced at $100 or more, regardless of any warranty policies.Continue Reading To Repair or Replace? California and New York Enact Right-to-Repair Laws

It’s here! The 11th edition of Venable’s popular Advertising Law Tool Kit is now available for download. This annual resource compiles a broad spectrum of marketing-related topics, background information, and checklists into an easy-to-access guide, authored by some of the most experienced attorneys in the industry. Download this year’s Tool Kit or bookmark the link…

With the complexity of product safety requirements, the changing regulatory environment, and the ferocious plaintiffs’ bar, it is more important than ever for importers, manufacturers, and retailers to understand their obligation to comply with product safety laws and standards. In this recent webinar, Melissa L. Steinman, a partner in Venable’s Advertising and Marketing practice, explored current developments in product safety and warranty laws and examined common issues and pitfalls that organizations need to be aware of relating to product standards and safety. She also addressed some follow-up questions.
Continue Reading You Asked, We Answered – Consumer Product Safety and Warranties

In formulating a health and safety-related claim, advertisers walk a fine line in accurately conveying the results of reliably conducted studies to support their claims. Disclaimers and other qualifying language are limited tools advertisers can use to mitigate the risk of a claims challenge. But as a recent NAD decision shows, just because a study is reliably conducted, does not necessarily mean it is a good fit to support an advertising claim. Thus, basing a claim on a reliably conducted study can still be held to be misleading if the study results do not closely reflect what the average consumer could realistically expect to achieve. What’s more, this recent decision reminds advertisers that a lengthy disclosure may not be sufficient when it fails to disclose a wide variability in observed study results.

On February 25, 2020, the National Advertising Division (NAD) issued a decision and recommendation that Trek Bikes discontinue use of the claim that its WaveCel helmet is “up to 48x more effective than traditional foam helmets in protecting your head from injuries caused by certain cycling accidents.” Although the cited “Bliven Study” demonstrated that the WaveCel helmet in fact outperformed traditional foam helmets for head injury protection in all impact scenarios, the NAD was concerned the claim conveyed the implied message that “People who use the WaveCel Helmet will have little to no risk of experiencing a concussion.”Continue Reading Heads Up! NAD Recommends Discontinuing WaveCel Safety Claim

Last week, the Federal Trade Commission (FTC) announced a $1.76 million settlement with Truly Organic, Inc. and its founder and CEO Maxx Harley Appelman regarding false “organic” claims. This is the first time the FTC has obtained monetary relief for deceptive “organic” claims, and the buzz around this settlement signals it may not be the last. The Commissioners’ vote was unanimous, and Commissioner Rohit Chopra released a statement in support of the settlement calling for the FTC to issue a Policy Statement setting forth the Commission’s approach to enforcement in cases involving dishonesty or fraud.

Truly Organic is a bath and beauty retailer that makes and sells a variety of personal care products, including hair care products, body washes, lotions, baby products, and cleaning products. As the brand name suggests, Truly Organic markets its products as wholly organic or certified organic in compliance with the United States Department of Agriculture’s (USDA’s) National Organic Program (NOP), the program that enforces national standards for organically produced agricultural products. Truly Organic conveyed the organic theme through a variety of claims, including “100% organic,” “truly organic,” “certified organic,” and “USDA certified organic.” The company also claimed its products were “vegan.”Continue Reading The FTC Gets Real About Fake “Organic” Claims

Dollar General, Dollar Tree and Family Dollar will pay $1.2 million in fines and restitution to the New York Attorney General to resolve allegations that they routinely sold expired medicines and failed to comply with New York’s bottle deposit law. The bulk of the penalty – $1.1 million – will be paid by Dollar General, which is accused of selling two types of motor oil that have been obsolete for almost 30 and 90 years, respectively.

Investigators began secretly shopping at the discount chains in March 2016, inspecting shelves for expired products. At stores throughout the state of New York, they found over-the-counter medicines for sale months past their expiration dates. At Dollar General stores, they also found at least two types of store-brand motor oil that is not suitable for most modern car engines. One type of motor oil has been obsolete since 1988, and the other since 1930. These motor oils were placed on store shelves next to, and used packaging with the same or similar descriptors as, brand-name motor oils that are suitable for modern engines. There were no signs or other indicators to warn customers that they should be used only on antique vehicles.Continue Reading A Day Late and $1.2M Short: NY AG Fines Dollar Store Chains for Selling Expired Medicines and Obsolete Motor Oil, Violating Bottle Deposit Law

Bimbo Bakeries and U.S. Bakery recently found out that consumer confusion, like politics, is local, and that “local” means what the local consumer says it means. Let’s unbraid this loaf.

In Bimbo Bakeries USA, Inc. v. Sycamore, No. 2:13-CV-00749, 2019 WL 1058234 (D. Utah Mar. 5, 2019), the jury originally awarded Bimbo $8,027,720 in damages on its false advertising claim against U.S. Bakery, which tried multiple times to convince the court that what makes bread “local” is really a matter of the seller’s opinion, or at least that claiming bread is “local” is mere puffery. According to U.S. Bakery, “local” is a geographical term, but not a geographically descriptive term entitled to Lanham Act protection, because “local” is not a specified location.Continue Reading Let’s Get This “Local” Bread!