New York CityWith the end of summer and the start of school also comes the fall advertising law conference season, starting with the annual NAD conference. We wanted to share some highlights of the two-day event from last week.

FTC Bureau Director Jessica Rich gave the keynote. While the FTC will not discuss pending cases, when discussing priorities, the Bureau Director is obviously aware of what is in the pipeline and where the staff is investigating and considering new cases, so we always give these remarks close attention. Jessica said when deciding what cases to bring, “we take our cues from the marketplace and target our enforcement on practices that limit consumer choice and do consumers harm.” She said the marketplace issues are currently closely tied to technology – how people shop for goods and engage with friends and with the products they buy. She flagged the establishment of the Office of Technology Research and Investigation (OTech) and credited it with helping the Bureau of Consumer Protection get on top of tech issues including training staff about new technology, hosting visiting scholars, engaging with the tech community and planning workshops. She said “we want to be the consumer protection agency for tech issues.” As far as current advertising enforcement priorities, Jessica noted 3 trends in Advertising Practices, in addition to the “steady diet” of health and weight loss claims and problems of disclosures. These are health apps, health claims targeting older consumers and advertising in new media. In more detail:Continue Reading Live from New York It’s the NAD Advertising Law Conference!

By Okram (Own work) [CC BY-SA 3.0], via Wikimedia Commons

A recent NAD decision provided an opportunity for NAD to once again opine on the standard for performance-related “up to” claims – this time related to energy efficiency.  As even infrequent readers of the blog are aware, this is a popular topic and one we’re prepared to talk about more often than Disney releases a Star Wars movie.

In this case, the North American Insulation Manufacturers Association (NAIMA) challenged several claims that Applegate made about its cellulose insulation.  Among other things, NAIMA challenged Applegate’s energy savings claims. Although the FTC in a similar case involving window energy efficiency claims applied a strict standard — that the majority of consumers using the product under ordinary operating conditions achieve the maximum touted results —  the NAD in response said it would not vary from its standard of an “appreciable number” of consumers achieving the touted results.  This case arguably put that pronouncement to the test as it involved claims virtually identical to those addressed by the FTC.  Nevertheless, NAD stuck to its guns and applied the “appreciable number” test, which raises the possibility that an advertiser, particularly one advertising energy savings claims might satisfy the NAD but still face FTC regulatory scrutiny.
Continue Reading “UP TO” NO GOOD

Lee Peeler has had a remarkable career. Currently he is President of the Advertising Self-Regulatory Council, which among other things oversees the NAD and CARU. Prior to that he was Deputy Director of the FTC’s Consumer Protection Bureau and an Associate Director of its Advertising Practices Division. And to top it all off, anyone who

By Cajsa Lilliehook from Portland (Chicken Noodle Soup) [CC BY-SA 2.0], via Wikimedia Commons

With the popularity of the eating local movement, it’s no wonder food companies want to promote when they do business with local farmers or have small batch local operations. NAD recently provided some guardrails for such claims in a case involving General Mills. Its Progresso Soups tout “Vineland, New Jersey: Home of Progresso” and “This [Vineland] i‎s where the great produce that goes into the soups is sourced.” Campbell’s asserted the claims implied that all or most of the Progresso ingredients were sourced locally in Vineland and that Progresso is a small company from rural New Jersey. Campbell’s said Progresso was owned by food giant General Mills, headquartered in Minneapolis, and the team running Progresso is in Minneapolis.

The soups identify General Mills and Minneapolis as the name and place of the business of the manufacturer under FDA regs and direct consumer inquiries to Minneapolis. Further, the challenger asserted that while some soups are made in Vineland, New Jersey, there are other facilities for soup making in Hannibal, Missouri and that non-soup Progresso products are made throughout the United States and Canada. (And while Missouri no doubt has some fine quality produce, something is lacking in touting Hannibal rather than Vineland as Progresso’s home base. Certainly for soup with fava beans.)Continue Reading Soup Competitors Stir the Pot on Local Sourcing Claims at NAD

While we love our male colleagues, I am delighted that the women partners and associates in our adlaw group easily outnumber them.  It seemed appropriate to close out Women’s History Month by taking a look at issues involving women in advertising (for the FTC’s take on Women’s History Month click here).

Gender equality was clearly absent from early advertising.  One ad from 1912 encouraged men to light a cigarette in front of a suffragette and watch her say “I wish I were a man.” 
Continue Reading Women’s History Month – A Look at Women in Advertising

By cyclonebill (Kaffe) [CC BY-SA 2.0], via Wikimedia Commons

We have sometimes described finding materials that will quickly biodegrade in landfills as the Holy Grail of environmental marketing.  But who would have guessed it would come in the form of a polystyrene cup?

Well, not exactly, the NAD cautioned in a recent decision.  New Win Cup Holdings marketed the Vio cup, which it claimed would – thanks to a special additive — biodegrade 84.37% after 1,154 days in a wetter, biologically active landfill  (wetter, biologically active landfills typically are landfills that are managed to promote the presence of water and oxygen, both of which accelerate biodegradation.)  Further, Win Cup stated that it had used a specific ASTM test, that there was no certainty that the cups would continue to biodegrade further after 1,154 days, and, last of all, that a wetter, biologically active landfill might not exist in your area.  Now that’s what we call a qualified claim!Continue Reading Not Your Mother’s Red Solo Cup

Photo by Roland Tanglao [CC BY 2.0] via Flikr
Photo by Roland Tanglao [CC BY 2.0] via Flikr

It’s been a big week for premieres. And if you thought you sensed a disturbance in the Force then the Force is indeed strong with you as the FTC just released their Enforcement Policy Statement on Deceptively Formatted Advertisements and Business Guidance on Native Advertising.

A long time ago, in a conference room far, far away, the FTC held a workshop on Native Advertising with a promise that some form of industry guidance would follow.  As it turns out, the premieres in both cases were worth waiting for.  Bearing in mind the Master’s admonition — “Do.  Or do not.  There is no try,” our take on the Enforcement Statement and Business Guidance is below.  And like many a typical blockbuster movie there was just too much good stuff to leave behind on the cutting room floor so our apologies ahead of time for the length of this blog.Continue Reading The FTC Awakens: Native Advertising Enforcement Statement Out Just in Time for the Holidays

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 maximum benefits.  There are also state and local pricing laws requiring for sales claims that 10-15% of the sale goods be available at the highest advertised discount.  Then the FTC brought cases involving savings claims for installing new windows, which included some rather sobering consumer research in which consumers appeared not to understand even relatively clear disclosures regarding “up to” claims.  The cases settled with orders requiring that all or almost all of consumers be likely to achieve the maximum claimed savings.  As a result the advertising legal community was thrown into a frenzy not knowing if the upper limit in an up to claim had to be something everyone could attain or 10% could attain or something in between.  NAD largely stuck to its old standard, but in cases where the purchase required a significant investment seemed more aligned with the FTC’s view in the windows cases. But things seemed to settle down somewhat back to normal when the FTC did not follow with a flurry of new cases. 
Continue Reading NAD Ups the Ante on “Up To” Claims