Washington D.C. Advertising Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

The need to market healthy food choices to the American public may never have been greater. Unfortunately, the current regulatory regime discourages companies from marketing a greater variety of healthful food products. That should change.

There is growing interest among public health experts in the role food marketing can play in promoting widespread adoption of healthy dietary practices by the public. But to encourage companies to market the greater variety of healthful food products that would have more diverse appeal, some regulatory obstacles—including the flawed standards governing product benefit claims and the inadequate scope of federal pre-emption—will have to be overcome.

This article examines the current regulatory status of FDA marketing claims, suggests a new set of standards, and also calls for pre-emption by the FDA to re-work its regulatory guidelines to ensure that the advertising of healthy foods remains an appealing option for the Food and Drug industries.

To view the full-text version of this article in PDF format, click here.

This article appeared in the September 8th issue of Legal Times, Vol. XXI, No. 36.

Used with permission. © 2008 Incisive Media. All rights reserved.
 

• Email This
• Print

The year 2007 proved to be tumultuous for both plaintiffs and defendants in cases involving Lanham Act litigation, with neither side gaining a clear advantage.

Many cases were filed, and trends over the past year show that district courts, in the wake of the Supreme Courts Dastar decision, are willing to limit claims based on standing, yet at the same time rule against defendants in other major cases. In addition, late 2007 brought a significant decision regarding court deference to National Advertising Division decisions.

This article summarizes major developments in this fast changing area, first, by discussion major trends, and second, by discussing two major cases from last year—DirecTV’s battle with Time Warner over advertising for its high-definition satellite service, and the ongoing battle over the claim that McNeil Nutritional’s SPLENDA product is “Made from sugar, so it tastes like sugar.”

To view the full text of this article in PDF format please click here.

This article appeared in the Summer of 2008 edition of Antitrust, Vol. 22, No. 3.

Copyright © 2008 by the American Bar Association. Reproduced with permission. All Rights Reserved.
 

• Email This
• Print
• Trackbacks

On May 12, 2008, the Federal Trade Commission (FTC) announced its approval of new rule provisions regulating email marketing practices under the CAN SPAM Act. These provisions will take effect on July 7, 2008.

The announcement of the new rule provisions were accompanied by the FTC’s Statement of Basis and Purpose, which set forth its thinking with respect to how the CAN SPAM Act applies to refer-a-friend emails and employer-to-employee emails.

This article describes each of the new rule provisions, and offers valuable insight on the likely impact of these requirements on email marketing practices. To view the full-text version of this article in PDF format, click here.

This article appeared in the July 2008 issue of Cyberspace Lawyer, Vol. 13 Issue 6.

Used with permission. © 2008 Thomson Reuters/West. All rights reserved.

• Email This
• Print
• Trackbacks

Dubbed “The Year of the Recall,” the startling increase in consumer product recalls in 2007 has guided sweeping Consumer Product Safety Commission (CPSC) reform legislation, which is in its final stages of approval. Consequently, companies are scrambling to improve compliance with product safety requirements and manage the financial effects of a recall or increased litigation.

As industry standards become increasingly stringent, companies should evaluate existing procedures to ensure compliance with consumer product safety requirements, and are further encouraged to stay aware of legislative developments in an effort to mitigate risk and monitor compliance.

This article examines the potential effects of the proposed legislative provisions on the scope of CPSC authority and offers practical pointers for navigating compliance issues affecting the consumer products industry in the United States.

To view the full-text version of this article in PDF format, click here.

This article appeared in the June 2008 issue of The Metropolitan Corporate Counsel, Vol. 16 No. 6.

Used with permission. © 2008 The Metropolitan Corporate Counsel, Inc. All rights reserved.

• Email This
• Print
• Trackbacks

You are an in-house attorney or outside counsel and your client brings a competitor’s advertising claim to your attention, convinced that it cannot be substantiated. You are asked to take action to prevent further damage to your client’s market position. But taking a stand does not and should not always mean taking your competitor to court. What are your options, and what factors will influence your recommended course of action?

Challenging a competitor’s advertising claims can mean anything from writing a letter to spending a year battling claims and counterclaims in court, with several additional options in between.
This article provides the practical guidance necessary to evaluate which option or options are best suited to serve your client’s needs and increase the likelihood of a successful challenge. By weighing the pros and cons of each method and staying up-to-date on relevant cases and trends, you will quickly transform any plan of attack from standard to strategic.

To view the full-text version of this article in PDF format, click here.

This article appeared in the June 2008 issue of Advertising Compliance Service, Vol. XXVIII Issue 12.

Used with permission. © Copyright 2008 JLCom Publishing Co., LLC. All rights reserved.

• Email This
• Print
• Trackbacks

Running promotions that involve consumer-generated content seems like a win-win. Users spend time engaging while creating the content and then, hey — free content. But the practice also poses challenges, because companies may be held liable for the actions of consumers, as well as their own actions. Because these promotions are relatively new, there are still a lot of legal uncertainties.

This article offers helpful tips to companies for reducing potential risk and responding promptly to complaints.

To view the full-text version of this article in PDF format, click here.

This article appeared in the May 2008 issue of OMMA Magazine.

Used with permission. All rights reserved.

• Email This
• Print
• Trackbacks

On December 20, 2007 the Federal Trade Commission (FTC) staff released for public comment proposed online behavioral-advertising privacy principles (Principles) in an effort to guide self-regulation of this nascent industry.

The release of these Principles followed a two-day Town Hall meeting held by the FTC late last year on behavioral advertising. Comments on the proposed Principles were initially due by February 22, but the deadline was extended to April 11.

The FTC staff’s Principles include specific recommendations and questions for industry regarding transparency and consumer control; data security and retention; privacy policy requirements; and treatment of sensitive data. These proposed Principles for the self-regulation of behavioral advertising carry important implications far beyond the online behavioral-advertising industry.

This article addresses the Principles suggested by the FTC and provides an analysis of their proposed application.

To view the full-text version of this article in PDF format, click here.

This article appeared in the March 2008 issue of LJN’s E-Commerce Law & Strategy, Vol. 24 No. 11.

Used with permission from the March 2008 edition of the LAW JOURNAL NEWSLETTERS – E-COMMERCE LAW & STRATEGY. © 2008 ALM Properties, Inc. All rights reserved.

• Email This
• Print
• Trackbacks

More and more companies are incorporating consumer-generated content into their promotions, and it can easily be a publicity boon — or a public-relations bust. As with any double-edged sword, treading carefully is the key to success.

In addition to the legal requirements that apply to promotions, there’s an inherent risk in putting so much power in the hands of consumers. The more control they have, the less control you have. Many promotions don’t run smoothly simply because sponsors fail to identify risks and plan accordingly.

This article outlines basic steps that sponsors can take to reduce their exposure to complaints and lawsuits involving these types of promotions.

To link to the full-text version of this article, click here.

This article was published by ADOTAS in March 2008.

Used with permission from ADOTAS. Copyright © 2005-08 Adotas.com. All rights reserved.

• Email This
• Print
• Trackbacks

The year 2007 continued a trend of many states enacting a wide range of privacy and data protection laws in the absence of a uniform federal law on this front.

State data breach notification laws require businesses to assess whether a potential data compromise qualifies as a “security breach” based on specific criteria, and to comply with notification obligations within a standard time period.

Because notification obligations only apply once a data breach has been incurred, a number of states have enacted broader forms of information safeguard laws requiring businesses to implement and maintain reasonable security procedures to protect personal information from unauthorized access, destruction, use, modification, or disclosure.

With similar legislation pending in several states, we are likely to see a growing number of these laws enacted in 2008. This article provides an analysis of the key state laws enacted to date that regulate how businesses handle personal information.

To view the full-text version of this article in PDF format, click here.

This article originally appeared in The Privacy Tracker, a publication of the International Association of Privacy Professions (IAPP). If you are interested in joining the IAPP and subscribing to the Privacy Tracker please visit www.privacyassociation.org.

Used with permission. Copyright © 2008 International Association of Privacy Professionals. All rights reserved. 

• Email This
• Print
• Trackbacks