Category Archives: Regulatory

FTC, FDA and other regulatory developments

SEC Issues Risk Alert on the Most Frequent Advertising Rule Compliance Issues and Use of Accolades in Advertisements

By Daniel Werb on September 28, 2017 Posted in Regulatory

On September 14, 2017, the staff of the SEC’s Office of Compliance Inspections and Examinations (OCIE) issued a National Examination Program Risk Alert on the most frequent advertising rule compliance issues identified in OCIE examinations of investment advisers. This Risk Alert reflected issues identified in deficiency letters generated in the course of over 1,000 adviser examinations … Continue Reading

Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk

By Lawrence Weinstein and Sarah Sullivan on June 20, 2017 Posted in Regulatory

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By ‘whey’ of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of Agriculture and the Chief of the Florida Bureau of Dairy Industry violated Ocheesee Creamery LLC’s First Amendment rights related to the … Continue Reading

Foreign Importer Hanging by a Thread, but International Trade Commission Cuts It Off

By Alexander Kaplan, Daniel Werb and Julia M. Ansanelli on May 1, 2017 Posted in Deceptive Trade Practices, Regulatory

The International Trade Commission recently issued a general exclusion order barring the importation of bed sheets with falsely advertised thread counts as a remedy for Section 337 violations. The decision in In re Certain Woven Textile Fabrics and Products Containing Same demonstrates the potential reach of Section 337, which prohibits unfair practices related to the … Continue Reading

FTC and DeVry University Settle False Advertising Claims for $100M

By Alexander Kaplan and Russell Kostelak on January 31, 2017 Posted in Deceptive Trade Practices, Regulatory, Uncategorized

In December 2016, DeVry University agreed to pay $100 million to settle a lawsuit with the Federal Trade Commission (FTC) over allegations stemming from DeVry’s advertising about the employment rates and salaries of its graduates. According to the FTC press release announcing the settlement in FTC v. DeVry Educ. Group in the district court for … Continue Reading

When the Strength of the Facts Cannot be Lifted – SDNY Dismisses Muscle Maker Slack-Fill Class Action

By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on January 3, 2017 Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Regulatory

The Southern District of New York recently dismissed a putative class action against Cytosport, the maker of Muscle Milk protein powder. The plaintiff, Orlando Bautista, alleged that he bought a container of Muscle Milk protein powder for $28 but was “surprised and disappointed” to discover that the package contained roughly 30% empty space. The suit … Continue Reading

De-certifiably Natural – Ninth Circuit Finds “All Natural” Label May be Misleading While Upholding Class Decertification

By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on October 18, 2016 Posted in Class Actions, Labeling Claims, Regulatory

The Ninth Circuit Court of Appeals recently reversed in part and affirmed in part a Northern District of California ruling (discussed previously, here) concerning the “All Natural Fruit” labeling on Dole’s packaged fruit products. Brazil v. Dole Packaged Foods, LLC, No. 14-17480, 2016 WL 5539863 (9th Cir. Sept. 30, 2016). The appeals court reversed the lower court’s … Continue Reading

Sugar Rush: FDA Rejects Use of “Evaporated Cane Juice” to Describe Sweeteners

By Lawrence Weinstein, Jennifer Yang and Russell Kostelak on June 27, 2016 Posted in Regulatory

For years, food companies have been using the term “evaporated cane juice” in the ingredients list on food products. This has resulted in a number of lawsuits by consumers claiming that the term misled them into thinking those products did not contain sugar, including this failed putative class action against KIND. In May 2016, the … Continue Reading

FDA New-trition Rules

By Alexander Kaplan and Daniel Werb on June 17, 2016 Posted in Regulatory

Last month, the FDA finalized amendments to the Nutrition Facts labeling rules for packaged foods and dietary supplements to reflect developments in nutrition science, including new scientific information regarding the link between diet and chronic diseases such as obesity and heart disease. Here are the highlights:… Continue Reading

“KIND” of Nutritious—FDA Permits “Healthy” Label and Agrees to Rethink Its Definition of “Healthy” Foods

By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on June 13, 2016 Posted in Regulatory

The Food and Drug Administration has kindly permitted Kind LLC to use the term “healthy” on its snack bars again, but with the caveat that the term must only be used in text clearly presented as part of Kind’s corporate philosophy, and not as a claim about the products’ nutrient content.… Continue Reading

Punch to the Gut: Government Denied Contempt Ruling in Bayer Probiotic Case

By Alexander Kaplan and Jeff Warshafsky on November 9, 2015 Posted in Regulatory

Bayer recently avoided a contempt finding concerning its Phillips’ Colon Health (“PCH”) probiotics advertising. Bayer advertised PCH as “Promot[ing] Overall Digestive Health” and “Help[ing] Defend Against Occasional Constipation, Diarrhea, Gas and Bloating.” The Government contended Bayer violated a 2007 consent decree requiring Bayer to possess “competent and reliable scientific evidence” substantiating such claims. To support … Continue Reading

Sun-Blocked: California Court Dismisses Sunscreen Labeling Case

By Lawrence Weinstein, Benjamin Rattner and Jeff Warshafsky on August 11, 2015 Posted in Deceptive Trade Practices, Labeling Claims, Regulatory

It’s summertime, and for many of us that means buying and applying sunscreen. Lots of it. Indeed, when selecting sunscreen rated at, say, SPF 30, we rely on national standards promulgated by the FDA. It thus comes as no surprise that a California state appellate court recently rejected attempts by several plaintiffs to impose different … Continue Reading

Procera AVH Marketers Can Forget About Claiming to Reverse Memory Loss

By Lawrence Weinstein and Sarah Sullivan on July 30, 2015 Posted in Deceptive Trade Practices, Regulatory

It turns out that there is not a magic pill capable of reversing the effects of aging on the human brain, including memory loss, or at least not one we can remember right now. The FTC recently reminded the marketers of Procera AVH, a dietary supplement that allegedly combats memory loss and cognitive decline, of … Continue Reading

Tomorrow is Another One-A-Day: FDA Guidelines Preempt Vitamin Claims, but Consumer Class Still Has Opportunity to Supplement

By Alexander Kaplan and Daniel Werb on April 30, 2015 Posted in Class Actions, Labeling Claims, Regulatory

Although consumer class actions in California are dime-a-dozen, a recent Northern District of California case involving One A Day vitamins stands out because it demonstrates how federal regulations can preempt certain state law claims regarding the health benefits of dietary supplements. The putative class alleged that three statements made by Bayer on their One A … Continue Reading

L’Oréal Smooths Things Over With FTC, Reaches Proposed Settlement Regarding Anti-Aging Claims For Its Skin Care Products

By Lee Popkin on July 15, 2014 Posted in Deceptive Trade Practices, Labeling Claims, Regulatory

On June 30, the Federal Trade Commission announced that it had reached a proposed settlement with L’Oréal USA, Inc. related to the Commission’s investigation of anti-aging claims made in advertisements for Lancôme Génifique and L’Oréal Paris Youth Code products. In its complaint, the FTC asserted that L’Oréal falsely represented that the products in these two … Continue Reading

Federal Judge Trims Diet Supplement Maker’s Earnings by $40M and Orders Recall of Banned Labeling

By Jeff Warshafsky and Jennifer Yang on June 5, 2014 Posted in Deceptive Trade Practices, Labeling Claims, Regulatory

On May 14, a Georgia federal court dished out severe contempt sanctions against Hi-Tech Pharmaceuticals, its president and two others for violating a 2008 court order relating to the advertising and labeling of Hi-Tech’s “diet supplements.” In addition to ordering a recall, the court also ordered the Hi-Tech defendants to disgorge not only their profits … Continue Reading

Truth In Advertising Act of 2014 — Congress Considers Legislation Aimed At Curbing Use of Digitally-Altered Photos In Advertisements

By Rebecca Felsenthal and Victoria Loughery on April 15, 2014 Posted in Regulatory

The Truth in Advertising Act of 2014 (H.R. 4341), introduced on March 27th, would mandate that the FTC create appropriate regulations to reduce the use (in advertising for commercial products) of images that have been altered in a way that “materially change[s] the physical characteristics of the faces and bodies” of any persons depicted in … Continue Reading

Proskauer and our platform provider LexBlog each use cookies to personalize content and ads, to provide social media features and to analyze traffic. Each of us also share information about your use of our site with our social media, advertising and analytics partners. If you are happy for us to store these cookies on your device please click 'Accept Cookies.' For more information, please see here and here.