Ad Law Access

Ad Law Access

Updates on consumer protection trends, issues, & developments

Category Archives: Advertising Litigation

Subscribe to Advertising Litigation RSS Feed

Contributory False Advertising Liability Is Officially a Thing in the Eleventh Circuit

Posted in Advertising, Advertising Litigation
On August 7, the Eleventh Circuit Court of Appeals, ruling on a question that the Court determined to be one of first impression, has ruled that a cause of action for contributory false advertising can be maintained under Section 43(a) of the Lanham Act. In Duty Free Americas, Inc. v. Estée Lauder Companies, Inc., No.… Continue Reading

FTC Administrative Law Judge Rejects Commission’s Definition of “Biodegradable”

Posted in Advertising Litigation, Federal Trade Commission, Green Marketing
Decision Also Reiterates Appropriate Standards for Consumer Perception Surveys On February 6, 2015, Chief Administrative Law Judge D. Michael Chappell announced his decision (“Initial Decision”) in the case of FTC vs. ECM BioFilms.  The Initial Decision rejects the FTC’s position codified in the FTC’s Guides for the Use of Environmental Marketing Claims (“Green Guides”) that “[i]t is deceptive to… Continue Reading

D.C. Circuit Upholds FTC on POM’s Advertising, Strikes Two-Study Standard

Posted in Advertising Litigation, Federal Trade Commission
The U.S. Court of Appeals for the D.C. Circuit issued an opinion on Friday, January 30, upholding the Federal Trade Commission’s findings that POM Wonderful’s advertising, in which it claimed that consuming POM Wonderful pomegranate juice could prevent or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, was deceptive. Although the D.C.… Continue Reading

Association of National Advertiser’s Advertising Law & Public Policy Conference — March 31-April 1, 2015

Posted in Advertising, Advertising Litigation, Class Action Litigation, NAD
Join Partner John Villafranco at the Association of National Advertisers’ Advertising Law & Public Policy Conference in Washington, DC on March 31-April 1, 2015. Mr. Villafranco’s session, entitled “The Current And Future State Of Advertising Self-Regulation,” will feature the findings of an antitrust law working group formed to examine self-regulation in the advertising industry. The program… Continue Reading

False Advertising Class Action Says Maker’s Mark Whisky is Not “Handmade”

Posted in Advertising Litigation, Class Action Litigation
Two purchasers of Maker’s Mark whisky have sued the company, accusing it of falsely advertising the whisky as “handmade”. The lawsuit, filed as a putative statewide class action in California, alleges that Maker’s Mark “promotes its whisky as being ‘Handmade’ when in fact Defendant’s whisky is manufactured using mechanized and/or automated processes, which involves little… Continue Reading

New Jersey Offers Legislation Designed to Address Energy Supply Companies’ Variable Rate Disclosure Practices

Posted in Advertising Litigation, Class Action Litigation
In the wake of the unexpected polar vortices and extreme weather that struck the East Coast in early 2014, many state public utility commissions and attorneys general were inundated with consumer complaints relating to increases in energy supply companies’ variable rates.  Regulators took notice, opening investigations and convening public conferences in an effort to understand… Continue Reading

Marketing Consultant May Be Held Liable Under TCPA for Its Third-Party Marketer’s Unsolicited Text Messages

Posted in Advertising Litigation, Telemarketing and Call Center Operations
Last Friday, the U.S. Court of Appeals for the Ninth Circuit held that a marketing consultant for the United States Navy – the Campbell-Ewald Company – could be held liable for a third-party marketer’s violations of the Telephone Consumer Protection Act (“TCPA”) arising out of the transmittal of unsolicited text messages. The Navy hired Campbell-Ewald to… Continue Reading

Smooth Sale-ing: Jos. A. Bank Wins Before Seventh Circuit

Posted in Advertising, Advertising Litigation, Class Action Litigation, Retail
Late last week, the Seventh Circuit affirmed the dismissal of a putative class action alleging that Jos. A. Bank advertises its normal retail prices as temporary price reductions, in violation the Illinois Consumer Fraud and Deceptive Business Practices Act. The company’s pricing practices, the plaintiff argued, constituted a “fraudulent sales technique.” Illinois law, like most… Continue Reading

“Psychological Commitment” as a Basis for a Promotional Pricing Lawsuit?

Posted in Advertising, Advertising Litigation, Class Action Litigation
Class action plaintiffs continue to explore new theories under state promotional pricing statutes. Last week, a plaintiff filed a class action complaint against Gap Inc. in California state court, alleging that the company violates several state laws by not adequately disclosing which products are excluded from an advertised sale. As a result, consumers make a psychological commitment… Continue Reading

Hulu Hit with Class Action Over Automatic Renewals

Posted in Advertising, Advertising Litigation, Class Action Litigation
In 2010, California enacted a law governing automatic renewals. As we previously posted, the law generally requires that companies: (1) clearly disclose the material offer terms before a consumers subscribes; (2) obtain affirmative consent to the terms before the consumer is charged; (3) provide a confirmation to the consumer that includes the terms, a description… Continue Reading

Fit To Be Tied? Lessons from the Fitbit Recall

Posted in Advertising, Advertising Litigation, Class Action Litigation, Consumer Product Safety, FDA
The Consumer Product Safety Commission recently announced a recall of the Fitbit Force, a wireless activity-tracking wristband, because of consumer reports of rashes, skin irritation and blistering.  Consumers are directed to stop using the product and it is now illegal to sell or resell the product.  As is increasingly common, announcement of the recall was… Continue Reading

Supreme Court Clarifies Standing For Lanham Act False Advertising

Posted in Advertising Litigation
On March 25, 2014, a unanimous Supreme Court ruled that a manufacturer of components for use in refurbished toner cartridges has standing under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) to sue the maker of printers in which the cartridges could be used for false advertising.  Static Control Components, Inc., the component manufacturer,… Continue Reading

Association of National Advertiser’s Advertising Law & Public Policy Conference – April 23-24

Posted in Advertising, Advertising Litigation, Class Action Litigation, NAD
Join Partner John Villafranco at the Association of National Advertisers’ Advertising Law & Public Policy Conference in Washington, DC on April 23-24.  Mr. Villafranco’s session, entitled “Class Actions and a Collision with the NAD,” will explore the developing interaction between litigation and self-regulation, with particular emphasis on the rise in consumer class actions and CLRA… Continue Reading

The Hits Keep on Coming: New “Natural” Settlements and Filings

Posted in Advertising Litigation, Class Action Litigation, Food and Drug
Two more food companies have reached settlements over “natural” claims. In a class action suit against Popchips, Inc., plaintiffs alleged that the maker of Popchips snacks misled consumers by labeling and promoting its product as “natural” when it contained artificial and synthetic ingredients. Popchips denies the allegations, but agreed to establish a $2.4 million fund to… Continue Reading

A Win for Keeps for Lance Armstrong?

Posted in Advertising Litigation, Class Action Litigation, Food and Drug
Shortly after Lance Armstrong admitted to doping during his seven Tour de France wins, a group of plaintiffs filed a class action against both Armstrong and FRS, the maker of over-the-counter energy products. The plaintiffs alleged that FRS and Armstrong, a former FRS endorser, had engaged in false advertising and breach of warranty when they promoted FRS products as Armstrong’s… Continue Reading

“Natural” Class Action Against Dietary Supplements

Posted in Advertising Litigation, Class Action Litigation
Compared to conventional foods, which have been barraged with class action suits over “natural” claims, dietary supplements have not been hard hit.  Late last month, however, a plaintiff filed suit against Hammer Nutrition, Ltd. over “natural” claims and other claims used to promote two of the company’s dietary supplements. The plaintiff filed suit in federal… Continue Reading

Ravioli Trees and Tortellini Bushes: What is Considered a “Natural” Food?

Posted in Advertising Litigation, Food and Drug
A new article published by the Food and Drug Policy Forum “Ravioli Trees and Tortellini Bushes: What Should Courts Expect from the Reasonable Consumer When it Comes to “Natural” Claims?'” discusses how in recent years there have been many consumer class action cases alleging that advertisers are deceptively labeling their products as natural when the… Continue Reading

Audio Conference Event: Tips for Reducing Class Action Litigation Risk following Regulatory Enforcement

Posted in Advertising, Advertising Litigation, Class Action Litigation, Federal Trade Commission, Food and Drug, NAD
The number of consumer class actions filed following regulatory enforcement by the FTC, FDA, or NAD have skyrocketed in recent years.  Consumer products companies – particularly food, dietary supplement, and cosmetic manufacturers – now must consider not just how to respond to a federal or state regulator who is seeking information about their marketing campaign,… Continue Reading

In A Culture Of Instant Gratification, Court Tosses Class Action Regarding Availability of Certain Product Features

Posted in Advertising, Advertising Litigation, Class Action Litigation
On January 29, a California federal judge tossed a putative class action claiming the makers of video game blockbuster “Grand Theft Auto V” misled gamers by marketing online features that weren’t immediately ready, ruling the packaging never promised the features would be available at launch.  In a complaint filed in May 2013, the plaintiffs alleged that… Continue Reading

In Pricing Case, California Court Determines Meaning of “Free” Shipping

Posted in Advertising, Advertising Litigation, Federal Trade Commission, Retail
In the Overstock.com case described in the post yesterday, the plaintiff also argued that Overstock’s representations that shipping was “free” or “only $2.95” violated California’s False Advertising Law because the company factored the full cost of shipping into the underlying product price. The court ruled in Overstock’s favor, determining that the claim was “nonsensical,” and… Continue Reading

California Court Imposes $6.82 Million Civil Penalty in Comparative Pricing Action

Posted in Advertising, Advertising Litigation, Retail
Still recovering from the holiday sales? If you’re a retailer or a manufacturer pricing your own products, don’t forget about the state laws governing promotional pricing and deceptive pricing claims. The state of California certainly hasn’t – on Friday, a California judge issued an almost $6.82 million civil penalty against Overstock.com via a tentative ruling and… Continue Reading

Advertising Law for Dogs

Posted in Advertising, Advertising Litigation, NAD
We’ve previously discussed principles to consider when advertising foods, drinks, and supplements. A decision issued by the NAD last week gives us an opportunity to see how those principles play out in ads for pet supplements. In that case, the maker of Greenies dental treats for dogs challenged various health-related claims made by the makers… Continue Reading