John E. Villafranco

John E. Villafranco

John Villafranco is a partner in the Advertising and Marketing and Food and Drug Law practices at Kelley Drye & Warren LLP.

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FTC Releases Business Guidance on Multi-Level Marketing, Memorializing Principles from Prior Settlements on Hot Button Issues

The FTC released today Business Guidance Concerning Multi-Level Marketing, which offers answers to frequently asked questions to assist multi-level marketers in evaluating their business practices for compliance with the FTC Act.  The Guidance begins by restating the general standard for pyramid schemes set forth in the FTC’s 1975 Koscot decision and then goes on to … Continue Reading

Trump To Nominate Competition-Focused Simons for FTC Chair, CP-Focused Chopra for Commissioner; Reports of Philips for Additional Seat

After months of speculation among the consumer protection and antitrust bars, Trump announced today his intention to nominate former Director of the Bureau of Competition and current Paul Weiss partner Joseph Simons as Chairman of the Federal Trade Commission.  Trump also announced his plan to nominate Rohit Chopra, currently a senior fellow at the Consumer … Continue Reading

Case Dismissed in FTC v. Quincy Bioscience

On Thursday, a federal court in New York dismissed an FTC and New York Attorney General action against Quincy Bioscience, which sells the dietary supplement, Prevagen.  Quincy bases claims for its product on research that includes a randomized, controlled clinical study.  The court observed that the parties agreed that this “gold standard” study followed “normal … Continue Reading

“Free Speech in the Fog of Scientific Uncertainty” by Professor Jane Bambauer

In the following article authored by University of Arizona Law Professor Jane Bambauer, the professor makes a compelling argument that FTC/FDA regulation of health claims should focus on situations  where the government has compelling evidence of actual harm.   Professor Bambauer offers an opinion that high standards for health benefit claims can effectively silence commercial speech … Continue Reading

TINA Has Eyes on Goop

The consumer advocacy non-profit Truth in Advertising, Inc. (TINA.org) has set its sights on Goop, the lifestyle brand launched by Gwyneth Paltrow.  In a complaint filed earlier this week with the Santa Clara and Santa Cruz County California district attorneys, both members of the California Food and Drug and medical Device Task Force, TINA alleges … Continue Reading

Laura Brett Named New Director of NAD

More than a month after the retirement of former NAD Director Andrea Levine, the Advertising Self-Regulatory Council (“ASRC”) has announced NAD’s new Director: Laura Brett. Laura Brett, who has served as NAD’s Assistant Director since 2015, joined NAD in April of 2012. During her five years at NAD, Laura has authored several seminal decisions including … Continue Reading

FTC Announces Changes at the Helm of the Bureau of Consumer Protection; Thomas Pahl to Take Over as Acting Bureau Director Following Jessica Rich’s Departure

Acting Chairman of the Federal Trade Commission Maureen Ohlhausen announced today that Thomas Pahl – a current partner at Arnall Golden Gregory with significant experience at both the FTC and the Consumer Financial Protection Bureau – will take over as Acting Director on February 17.  Jessica Rich will depart as Director of the Bureau of … Continue Reading

FTC Announces Settlement with Uber over Allegedly Deceptive Earnings Claims; Commissioner Ohlhausen Dissents

In its latest action involving allegedly deceptive earnings claims, the FTC announced yesterday that Uber had agreed to settle charges that it misled potential drivers with inflated earnings claims.  The complaint also alleges that Uber misrepresented benefits of its Vehicle Solutions Program, which connects potential drivers with auto companies to buy or lease a vehicle … Continue Reading

FTC Chairwoman Ramirez Announces Resignation Effective February 10

Federal Trade Commission Chairwoman Edith Ramirez announced today that she will resign her position effective February 10, leaving the Commission with three vacancies and just two remaining commissioners.  Chairwoman Ramirez has been a commissioner since April 5, 2010 and became Chairwoman on March 4, 2013. In announcing her resignation, she remarked: “It has been the … Continue Reading

FTC Associate Director for Advertising Practices Elucidates the Commission’s Handling of Referrals From NAD

The advertising industry’s self-regulatory system may be “voluntary,” but ignoring NAD’s recommendations—or declining to participate when asked—buys advertisers a prompt referral to the Federal Trade Commission. NAD often touts its close working relationship with the FTC. But what becomes of these referrals from the self-regulatory system? At NAD’s annual conference last month, Mary Engle, the … Continue Reading

Court Suggests Companies Can Be Liable as Soon as Claims Become Stale

It’s a common question. A company creates a product with a competitive advantage; it takes steps to substantiate a superiority claim; and, satisfied that it has met the legal standard, it bases an advertising campaign on that claim. Then, a competitor comes along with a new product, and the superiority claim is no longer accurate. … Continue Reading

Weight-Loss Claims: How Many Studies Does the FTC Really Think It Takes?

On Tuesday, the FTC announced that it has sent warning letters to 20 marketers of weight-loss dietary supplements. The letters question whether the companies possess adequate support for claims and describe the scientific evidence required to support such claims. The Commission is asking the companies to review all product claims, including endorsements and testimonials, to … Continue Reading

Decision Highlights Questions Over Substantiation for Weight Loss Claims

The Eleventh Circuit recently issued a decision in an contempt proceeding against Hi-Tech Pharmaceuticals and several individuals. The case highlights the ongoing debate over whether clinical trials are required for weight loss claims and, if so, whether the clinical trials must be on the full product formulation rather than active ingredients. In 2008, a federal district … Continue Reading

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

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

Ingredient Supplier Settles FTC Charges Related to Sponsored Trial

Earlier this week, the FTC announced a settlement with a company that supplies functional ingredients to food and dietary supplement sellers. According to the FTC, the company sponsored “a seriously flawed human clinical trial” on a green coffee ingredient, advertised the results of the study, and through its advertising, provided its customers with the “the means and … Continue Reading

FTC Releases a Second Order Requiring Preservation of Records from Clinical Trials

The FTC recently announced a settlement with the makers of Nopalea, a fruit drink derived from Nopal or “prickly-pear” cactus. The FTC alleges that the company and two individuals disseminated unsubstantiated claims that Nopalea improves respiration, treats skin conditions, and reduces inflammation and pain, including pain associated with arthritis, fibromyalgia, and other conditions. The company … Continue Reading

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

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

An Endorsement is Still Advertising.

John Villafranco breaks down how endorsements are regulated and what guidelines advertisers should adhere to in order to stay out of trouble with the FTC in a new article published by Nutritional Outlook. “Enforcement on Endorsements,” explains how endorsements can be very powerful advertising tools, but must comply with the Federal Trade Commission Act Section … Continue Reading

Supreme Court Rules in Favor of Facebook in Class Action Cy Pres Challenge

On Monday, the Supreme Court ruled that Facebook’s $9.5 million settlement of privacy claims did not violate federal rules that require class action settlements to be “fair, reasonable and adequate.” The suit (Marek v. Lane, 13-136)  involves Facebook’s former use of its Beacon advertising program that tracked the activity of logged-in Facebook members and shared … Continue Reading

When the FTC Comes Calling…

A new article published by the Household and Personal Products Industry (HAPPI), “When the FTC Comes Calling…”, explains how to handle product claim investigations. The article outlines what companies can expect in the event of a Federal Trade Commission investigation, especially given that health and performance claims made by companies in the personal care products … Continue Reading

A Higher Bar to Class Certification in the Third Circuit?

The Third Circuit recently ruled to reverse the certification of a class of consumers who alleged that Bayer falsely advertised the metabolism-boosting benefits of its WeightSmart dietary supplement. The court held that the class members were not ascertainable, rejecting the plaintiff’s contention that it could look to retailers’ customer-loyalty card records or affidavits to determine … Continue Reading

So You Want to Self-Regulate? The NAD As Standard Bearer

The Federal Trade Commission has been an active proponent of industry self-regulation, recognizing that industry cooperation can lead to efficiency, innovation, and the dissemination of useful information, which can benefit both consumers and competitors. Self-regulation allows the FTC to conserve resources and direct them to high priority competition and consumer protection policy matters, while deferring … Continue Reading

Learning From FTC Closing Letters: Useful Insights into Prohibited Practices

In an interview with Catherine Dunn of Corporate Counsel, I discussed some of the patterns and principles found in FTC closing letters and how in-house counsel can benefit from understanding these trends should they find their companies the subject of a regulatory investigation. If a company receives an access letter from the FTC, the goal … Continue Reading
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