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

After intense debate, the day before Thanksgiving the Consumer Product Safety Commission ("CPSC") approved by a vote of 3-2 the structure for the consumer incident database mandated by the 2008 Consumer Product Safety Improvement Act.  Two of the most controversial provisions include (1) defining "consumers" and "public safety entities" who can post reports of harm or potential harm and (2) handling reports that the manufacturer has challenged as inaccurate.

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Hot off the presses -- registration for the ABA Consumer Protection Conference (Feb. 3, 2011, Washington DC) is now open! There is limited seating, so early registration is encouraged.

The all-star line-up of speakers includes:

• FTC Commissioners Julie Brill, Edith Ramirez, and J. Thomas Rosch
• Canada Privacy Commissioner Jennifer Stoddart
• Tony West, Assistant Attorney General, DOJ
• David Vladeck, Director, Bureau of Consumer Protection, FTC
• Joel Winston, Associate Director, Division of Financial Practices, FTC
• Sarah Mathias, Associate General Counsel, FTC

And representatives from the California and Texas Attorneys General Offices, the National Advertising Division, the Center for Democracy & Technology, Electronic Frontier Foundation, the American Bankers Association, among others.

Hot topics to be addressed include privacy, CP enforcement priorities, new substantiation rules, third party liability, social media, and more.

The full program brochure and registration information are available at the ABA's website. Space is limited so register soon to secure your spot, and please spread the word!

Kelley Drye partner Alysa Hutnik is a Conference Co-Chair.

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Companies marketing functional foods or dietary supplements should be aware of the Federal Trade Commission’s new regime for using health-related advertising claims and the Food and Drug Administration’s heightened scrutiny of health-related front-of-package (FOP) labeling claims.

In two game-changing settlement orders, issued in July of this year, the FTC, for the first time, required that the companies under order (1) possess two clinical trials for weight loss claims and certain disease claims, (2) have FDA approval for most other disease claims, and (3) follow a new standard for relying on ingredient testing as claim substantiation. The FTC has indicated that it intends to include similar requirements in its future food and supplement orders, suggesting that these new standards soon could set the bar for all companies, regardless of whether they are under order or not.

Similarly, FDA has issued a series of warning letters challenging the use of nutrient content claims, health claims, and other health benefit claims in food and beverage product labeling. Recent FDA warning letters challenge a number of claims appearing on the principal display panel of food and beverage product labels, underscoring the agency’s enforcement and policy development priorities concerning the standards governing FOP labeling systems.

Kelley Drye's Advertising and Marketing practice group has prepared several articles to help companies navigate the new terrain successfully:

• “The FTC’s New Take on Health-Related Advertising: What Companies Facing FTC Enforcement Need to Know” provides strategies for companies that are faced with FTC action and includes summaries and analysis that will be useful for anyone trying to wrap their head around the new standards.
• “Ingredient Testing for Food and Supplement Advertising Claims: Keeping Up with an Evolving Standard” presents a comparison of the old ingredient testing standard versus the new standard from the recent orders. This article also provides practical pointers for how to base claims on ingredient testing within FTC’s current guidance.
• “Marketing Nutrition & Health-Related Benefits of Food & Beverage Products: Enforcement, Litigation & Liability Issues” examines key developments over the past year and a half involving food and beverage product marketing claims. This examination suggests that FDA and FTC enforcement priorities have contributed to increasing liability trends associated with nutrition and health-related product benefit claims.

With increasing enforcement and litigation activity, food and supplement companies should stay informed about government scrutiny of health-related claims and the standards for competent and reliable scientific evidence.

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