Kelley Drye

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The Oregon AG recently announced a $545,000 settlement with the Vitamin Shoppe over allegations that the store violated Oregon state law by selling dietary supplements containing ingredients that FDA has deemed unsafe or unlawful. The new settlement agreement places significant burdens on the Vitamin Shoppe to monitor developments on ingredient status. The burdens are the…

On Monday, a consumer advocacy group announced that it had sent a letter to the Kardashian-Jenner family challenging how the sisters promote products on Instagram. The group contends that the sisters have engaged in deceptive advertising by failing to disclose that their posts are sponsored. The group states, “The law is clear – unless it’s …

PICThe NAD recently took a swipe at Goop, the lifestyle blog founded by Gwyneth Paltrow. To make “GP’s Morning Smoothie,” Goop had recommended using “dust” dietary supplements, such as Action Dust and Brain Dust, both sold by Moon Juice.  With its usual mix of practical – if also luxurious – wisdom, Goop advised, “Choose your…

On Tuesday, the FTC joined the Department of Justice and several other federal agencies in announcing numerous recent and ongoing actions against dietary supplement marketers. The FTC, in its discussions, highlighted a case that it filed earlier this year against marketers of green coffee products. That case is closely related to another case involving the unpaid appearance of a health foods commentator, Lindsay Duncan, on the Dr. Oz show. The FTC has alleged that the appearance by Duncan on the television program constituted commercial speech that is subject to the FTC’s advertising jurisdiction. That allegation appears to be part of a growing trend at the FTC to attempt to reach unpaid media interviews and appearances. This trend is troubling in that it is at odds with Supreme Court precedent and threatens companies’ ability to participate in news interviews, talk shows, or other media interactions.

Four main principles emanate from the Supreme Court precedent defining commercial speech.

  1. Early cases like Virginia Bd. of Pharmacy and Bates provided the foundation that commercial speech is “speech proposing a commercial transaction.”
  2. Cases like Bolger and Zauderer built on that foundation, finding that whether a publication “proposes a commercial transaction” depends on circumstances such as the speaker’s potential economic motivations and whether a specific product is identified.
  3. Cases like Bolger and Zauderer also found that if speech  proposes a commercial transaction, it will normally remain commercial speech even if it touches on matters of public debate. In Zauderer, for example, the Court held that a print advertisement by a law firm remained commercial speech even though it discussed the potential hazards of an intrauterine device.
  4. Finally, two later cases, Riley and Fox provided the caveat that if commercial speech is “inextricably intertwined” with fully protected speech, it will be treated as fully protected. The “inextricably intertwined” standard will likely not be met by an advertiser voluntarily choosing to mix product information and discussions of matters of public debate. Rather, the mixing of types of speech likely must be something more akin to the facts of Riley in which a state law interjected a mandatory commercial disclosure into charitable solicitations, which are otherwise fully protected speech. The Court, in that instance, treated the whole of the speech as fully protected.

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Continue Reading The FTC Pressures Press Interactions, Defies Commercial Speech Doctrine

In recent years, the FTC and the Center for Science in the Public Interest (“CSPI”) seem to have seen disease claims everywhere, regardless of whether the FDA has deemed the same claims appropriate, non-disease structure/function claims.  In the United States v. Bayer Corp., for the second time in recent months, a court called them on it.  We discussed before a similar ruling in a class action case brought by CSPI.

In this latest case, the FTC alleged that Bayer violated a 2007 order by disseminating unsubstantiated disease claims for the probiotic supplement, Phillips Colon Health. …
Continue Reading United States v. Bayer: Preventing or Treating Disease Claims

For several years now, dietary supplement advertising has been squarely on the radar of the FTC, state regulators, self-regulators, and last but never least, plaintiff’s lawyers. A recent FTC settlement with the makers of the dietary supplement, Procera, highlights that point.

The FTC’s investigation appears to have begun with a nudge from the self-regulatory body,…

The FTC recently released a new version of its Q&As on the Endorsement Guides. The old Q&As, released in 2010, were about seven pages long. The new ones just about double that. The revisions and additions reflect many of the positions that the FTC has taken in the course of its enforcement over the past five years. Below is a summary of what’s new.

  • “Likes.” The FTC questions “how much stock social network users put into ‘likes’ when deciding to patronize a business.” Nevertheless, the FTC states that, as a part of advertising campaigns, “[a]dvertisers shouldn’t encourage [use of] features [such as ‘like’ buttons] that don’t allow for clear and conspicuous disclosures.”
  • Contests. When a company asks a consumer to post something (e.g., “#CompanyX4Evs”) in order to enter a contest, the FTC will normally consider the post to be an endorsement. Additionally, according to the FTC, entry into the contest is an incentive that should be disclosed – especially if a significant prize is at stake.
  • Talk Shows. If a talk show host is paid to promote a product, the FTC will usually expect disclosure of the connection.  Similar promotions by a paid expert in non-traditional media will also normally constitute an endorsement and require appropriate disclosures, according to the FTC.
  • Gifts for Honest Feedback. In the FTC’s view, it doesn’t matter if a company expressly tells people to be honest in their reviews. Any gifts or incentives for reviews should still be disclosed.
    Continue Reading Q: What’s Different About the FTC’s New Endorsement Q&As? A: Lots.

A California court recently dismissed, in part, a consumer class action against labeling and advertising claims for twenty different Bayer One-A-Day multivitamins. The plaintiffs had alleged that the claims, “supports heart health” and “supports immunity” – which Bayer used for many of the products – were impermissible disease claims. The court rejected these allegations. It…

The Department of Justice recently filed a motion in federal court against Bayer Corporation over advertising for its probiotic supplement, Phillips’ Colon Health.  The DOJ alleges that Bayer lacks the “competent and reliable scientific evidence” that a prior 2007 order requires the company to possess for any efficacy or benefit claim for a dietary supplement. According to the government’s medical expert – a gastroenterologist and professor at Yale medical school – appropriate science for constipation, diarrhea, gas, and bloating claims for Phillips’ Colon Health should consist of randomized, double-blind, placebo-controlled studies on the product or “a product comprised of the same combination of the same strains of bacteria.”  Without such evidence, the government alleges that Bayer’s claims are not properly supported.  The FTC is assisting DOJ with the case.
Continue Reading FTC v. Bayer: The Good News

The FTC recently announced that it sent warning letters to five “major retailers” selling athletic mouth guards on their websites. According to the FTC, the retailers’ websites included concussion claims that may be deceptive. The FTC urged the recipients of the letters to ensure that all concussion claims appearing on their sites are backed by …