Publications
Privacy Unfairness and the First Amendment: Happy Birthday Central Hudson
March 17 of this year marks the 37th anniversary of oral arguments in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York 447 US 557 (1980), a case that should serve as a reminder that commercial speech is, in fact, entitled to First Amendment protection – something that is all too often overlooked in the legal analysis of advertising campaigns and...
No Whitewash of Endorsement Claims in Proposed FTC Settlement with Paint Companies
Marketers interested in the regulation of “green” claims in the home paint category will want to take notice of the Federal Trade Commission’s proposed settlement this week with four paint companies who were alleged to have made deceptive claims that their products were emission-free or contained zero volatile organic compounds (VOCs). But all marketers should take not...
No Good Night’s Sleep With This Offer
According to Tuft & Needle in a recent challenge filed with the National Advertising Division (“NAD”), administered by the Council of Better Business Bureaus, at least two important items are misrepresented: (i) there is no savings of $125.00 because the mattresses are always available for purchase at the lower price point, and (ii) the pillows cannot lawfully be advertised as...
Native Advertising: FTC Policy Update
One of the Federal Trade Commission’s core missions is investigating and taking action against false and deceptive advertising claims. For any advertiser or marketer, being on the receiving end of an enforcement action is a serious, possibly long-term endeavor. In late December 2015, the FTC released its Enforcement Policy Statement on Deceptively Formatted Advertisements. Clearly, the statement’s name...
NAD Decision in StubHub Case – Service Fees Must be Disclosed Upfront
StubHub’s price disclosure practices have come under scrutiny by the National Advertising Division (“NAD”) of the Council of Better Business Bureaus, and NAD’s decision last month critical of these practices has implications for all online marketers of consumer goods and services. At issue in the StubHub inquiry was the manner in which StubHub discloses its services fees...
NAD – Omega XL Dietary Supplements
The NAD found that Great Health Works, LLC had a reasonable basis to make several establishment and performance claims regarding the efficacy of the Omega-XL supplement in reducing joint inflammation and pain. In reaching its decision, the NAD noted that eight clinical studies have been conducted on the Omega-XL preparation...
Legal Review of Advertising Claims – A Ten Minute Overview
From the ad agency “war room” to the advertiser’s boardroom, the driving force behind almost every advertising campaign is a set of product claims approved for inclusion in the creative executions. These claims may be boldly asserted or subtly suggested. They may be highlighted in clearly informative copy, or softly delivered in sentimental music from...
Headache Inducing Headlines? Here’s 500 mg of Prevention
In the end of March 2017, advertiser Magners Irish Cider accused Miller Lite and its advertising agency of using Magner’s HOLD TRUE tagline in a Miller Lite campaign. Magners went public and Tweeted “@MillerLite Imitation is the sincerest form of flattery they say...#HoldTrue.” While Magners was clearly having fun at Miller Lite’s...