Proskauer on Advertising Law
Proskauer on Advertising Law

Category Archives: Regulatory

FTC, FDA and other regulatory developments

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A Slammed (Open)Door: FTC Reaches $62 Million Proposed Settlement with Real Estate Company

Last month, the FTC announced that it reached a $62 million proposed settlement with Opendoor Labs, related to the Commission’s investigation of the company’s representations in advertising to prospective home sellers. Opendoor is an online real estate business in the “iBuying” (or “instant buying”) space. iBuying companies use algorithms to determine a home’s value and … Continue Reading

On Notice: Misattributed, False, or Mischaracterized Endorsements

Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the issues of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Notice as unfair or deceptive. In particular, the FTC stated that: It is an unfair or deceptive trade practice to make claims which … Continue Reading

On Notice: Procedural Overview of the FTC’s Section 5 Penalty Offense Authority

As discussed in our earlier post, on October 13, 2021, the FTC issued “Notice of Penalty Offenses” letters to more than 700 companies, placing them on notice of civil penalties up to $43,792 per violation if they use endorsements or testimonials in an unfair or deceptive manner. These letters are the first step for the … Continue Reading

On Notice: FTC Issues Warning to Hundreds of Companies Regarding the Use of Fake Reviews and Other Misleading Endorsements in Online Marketing Campaigns

Prompted by the proliferation of social media advertising that often blurs the line between authentic content and sponsored posts, the Federal Trade Commission last week sent more than 700 companies a Notice of Penalty Offenses warning them against the use of deceptive endorsements in their online advertising.  The Notice advises recipient companies that engaging in … Continue Reading

Third Circuit Affirms Decision to Reject FTC’s False Advertising Claims Against Housing Insulation Company

A Third Circuit panel recently affirmed a Pennsylvania district court decision in favor of defendant Innovative Designs (“IDI”) in an advertising challenge by the FTC. We previously blogged about the district court decision, which found the FTC failed to present any credible expert testimony to support its claims. On appeal, the Third Circuit panel affirmed, … Continue Reading

Court Considers FTC’s Ability to Seek Monetary Relief Post-AMG

Earlier this year, we blogged about the Supreme Court’s decision in AMG v. FTC, which significantly curtailed the FTC’s ability to seek monetary restitution under Section 13(b) of the FTC Act.  One quick update there: The U.S. House of Representatives recently voted to restore the FTC’s Section 13(b) disgorgement powers.  For now, though, in the … Continue Reading

Judge Looks “Kind”ly Upon Certifying Class in Snack Bar Advertising Suit

In a recent opinion out of the Southern District of New York, Judge William H. Pauley III certified three classes of plaintiffs in New York, California, and Florida who allege that KIND LLC, the manufacturer of KIND Bars, deceptively marketed several products as “all natural” and “non-GMO,” even though they purportedly contain synthetic and genetically … Continue Reading

FTC Workshop: “Bringing Dark Patterns to Light”

The FTC recently held a workshop titled “Bringing Dark Patterns to Light,” a recording of which can be found at the following link. The workshop centered around exploring the effects of digital “dark patterns” on consumers and the marketplace. The term “dark patterns” refers to a range of potentially deceptive website design tactics that can … Continue Reading

Supreme Court Curtails FTC Power to Seek Restitution in Court

A unanimous Supreme Court yesterday significantly curtailed the FTC’s ability to obtain the equitable monetary remedies of restitution and disgorgement of profits from entities accused of engaging in deceptive practices in violation of the FTC Act.  In so holding, the Court drew heavily on its interpretation of the language and history of that statute in … Continue Reading

2020 Advertising Law Year in Review

While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of … Continue Reading

Court Gives Cold Shoulder to FTC’s False Advertising Claims Against Housing Insulation Company

In a dispositive decision during a bench trial, federal district court Judge Nora Fischer of the Western District of Pennsylvania found that the FTC failed to present any credible expert testimony to support its suit for false advertising, and entered judgment for Defendant Innovative Designs (“IDI”). FTC v. Innovative Designs, No. 16-1669 (W.D. Pa. Sept. … Continue Reading

As Challenges to Recycling Claims Rise, Use Caution When Giving the “Green” Light

NPR and PBS recently released an attention-grabbing investigation titled “How Big Oil Misled The Public Into Believing Plastic Would Be Recycled.”  According to the investigation, beginning in the late 1980s, “big oil” began a $50 million-a-year ad campaign promoting the benefits of plastic, while simultaneously informing the public that plastic is recyclable. In fact, according … Continue Reading

Conagra Slips Away from Parkay Oil Spray Serving Size Claims

Conagra Brands recently emerged victorious when Judge William H. Orrick of the U.S. District Court for the Northern District of California granted summary judgment in its favor, tossing claims that the company disguises the fat and calorie content of its Parkay Spray vegetable oil spray product (“Parkay”) with artificially small serving sizes. Allen v. Conagra … Continue Reading

Gin Manufacturer Bacardi Avoids Lawsuit for Its Use of “Grains of Paradise”

A federal judge in the Southern District of Florida recently dismissed an action alleging that Bacardi’s use of a botanical called “grains of paradise” in its gin was “harmful and illegal,” holding that the statute on which the lawsuit was based was preempted by federal law. Marrache v. Bacardi U.S.A, 19-cv-23856 (S.D. Fla. Jan. 28, … Continue Reading

Chambers Pharmaceutical Advertising 2019: USA

Proskauer partners Lawrence Weinstein and Alexander Kaplan wrote the book – 11 chapters of it – on U.S pharmaceutical advertising law. The 2019 Chambers Global Practice Guide: Pharmaceutical Advertising is a great, curated resource for drug companies, hospitals, medical practices and other U.S. health care organizations. The guide provides insight to topics such as: FDA and … Continue Reading

Snack Bar Class Action Powers On After USDA Action and FDA Inaction

Unlike a fine wine, a snack bar does not get better with age. Neither, apparently, does litigation. Last month, Judge William H. Pauley III in the Southern District of New York lifted a years-long stay in a lawsuit against KIND LLC concerning the allegedly false marketing of KIND snack products as “all-natural” and “non-GMO.” In … Continue Reading

FTC Statistics Confirm Risks to Advertisers of Refusing to Participate in NAD Proceedings

No advertiser likes challenges to its advertising, whether by private litigants, state or federal governmental agencies, or in voluntary self-regulatory NAD proceedings.  But for companies whose advertising is challenged at NAD, there are good reasons to participate and to abide, like it or not, by NAD’s recommendations or those of NARB, the appellate arm of … Continue Reading

San Francisco City Ordinance Takes a Hard Hit in Ninth Circuit Soft Drink Lawsuit

Can an en banc decision of a federal appellate court be controversial even when every single active judge of that court agrees with the outcome? The answer is emphatically yes, as confirmed by the Ninth Circuit’s January 31, 2019 en banc decision in American Beverage Ass’n et al. v. City & County of San Francisco, … Continue Reading

SCOTUS to Decide If Courts Must Defer to the FCC’s Interpretation of “Unsolicited Advertisements” under the TCPA

On November 13, 2018, the Supreme Court agreed to consider the amount of deference a federal court is required to give the Federal Communications Commission in determining what constitutes an unsolicited advertisement within the meaning of the Telephone Consumer Protection Act (TCPA). PDR Network v. Carlton & Harris, No. 17-1705. The case is scheduled for … Continue Reading

Court Puts “FDA-Cleared” Complaint on Ice

The Central District of California recently dismissed, for the second time, a putative class action filed by two plaintiffs who claimed to have purchased Zeltiq Aesthetics, Inc.’s “CoolSculpting” fat-reduction treatments under the allegedly mistaken belief that the treatments had been “approved,” not just “cleared,” by the U.S. Food and Drug Administration.… Continue Reading

Snack Bar Class Action is KIND-ly Stayed Pending USDA Regulation on Bioengineered Food

Earlier this month, Judge William H. Pauley III in the Southern District of New York stayed a lawsuit against the snack bar maker KIND LLC, styled as a class action, alleging that KIND falsely marketed its products as “all natural” and “non-GMO.”  In re KIND LLC “Healthy & All Natural” Litigation, 2018 WL 1156009 (S.D.N.Y. … Continue Reading

Class Certification Denied in Juice Dispute

Recently, a New Jersey federal district court judge refused to certify a class of consumers claiming an orange juice product was mislabeled as “pasteurized.”  In re: Tropicana Orange Juice Marketing and Sales Practices Litigation. According to plaintiffs, Tropicana’s “Pure Premium” orange juice contained added natural flavoring in violation of FDA pasteurization standards.  The court denied the … Continue Reading

New Jersey Supreme Court Announces Last Call for TCCWNA Happy Hour

In recent years, creative plaintiff-side class action attorneys in New Jersey have attempted to seek relief under the Truth in Consumer Contract, Warranty and Notice Act (“TCCWNA”), which allows for $100 in statutory damages per violation to “aggrieved consumers” when terms in certain contracts or other writings violate a “clearly established legal right of a … Continue Reading

FDA Approves First Qualified Health Claim about Allergy Prevention on Baby Food Labels

Last month, the FDA announced that companies will be able to label baby food products with advice about how the early introduction of peanuts in an infant’s diet may reduce the risk of developing a peanut allergy. This marks the first time the FDA has permitted a qualified health claim of food allergy prevention. These labels … Continue Reading
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