The Advertising Law Blog provides commentary and news on developing legal issues in advertising, promotional marketing, Internet, and privacy law. This blog is sponsored by the Advertising, Marketing & Promotions group at Olshan. The practice is geared to servicing the needs of the advertising, promotional marketing, and digital industries with a commitment to providing personal, efficient and effective legal service.
What the FDA considers “healthy” remains a major source of contention. The FDA has started a public process to redefine the “healthy” claim on food labeling to update existing food choices which will hopefully bring clarity to the issue.
FDA regulations prohibit making drug claims for dietary supplement products even if such claims are supported by scientific evidence. A recent FDA enforcement action involving dietary supplement products promoted to address high cholesterol, hypertension, diabetes, depression and muscle pain claims show that the agency is prepared to take significant steps where manufacturers continue to make drug claims for dietary supplement products, particularly where the facility fails to meet CGMP requirements.
In the wake of recent public dialogue about whether or not social media plays a role in the outcome of public events, this week, German Justice Minister, Heiko Maas, has proposed a law that would see social media sites face fines of up to 50 million euros if they fail to remove illegal content from their platforms. This comes on the heels of analogous discussions in the U.S. about social media platforms' role in disseminating, and obligations to review and remove, now-coined “fake news” content. Most recently, on March 13th, 2017, Facebook CEO, Mark Zuckerberg, again defended his company against assertions that by failing to remove false content from the platform, Facebook plays a role in promulgating “fake news.” Following a November 2016 Facebook post in which Zuckerberg addressed the need to weigh the removal of “fake” or illegal content from the platform against the preservation of freedom of expression, Zuckerberg touted accusations that Facebook wants “fake news” as “crap.” Commenting at a recent talk at North Carolina A&T State University, Zuckerberg rejected the notion that Facebook views “fake news” articles as a means of inducing more “clicks.”
Nautilus advertised its Bowflex TreadClimber exerciser as promoting substantial weight loss. NAD recommended that the broad claim of “All They Had To Do Was Walk” should be discontinued because its weight loss claims failed to sufficiently encompass the need to diet.
Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in Luxury Daily and Mobile Marketer on what the future of net neutrality—which protects online data from potential discrimination by Internet Service Providers (ISP’s) or by the government—could hold for digital marketers and consumers alike, especially in light of the recent appointment of Ajit Pai, an opponent of net neutrality, as the new FCC Chairman.
Companies and advertisers need to ensure that any “Made in USA” claims they make are not misleading, as the FTC has increased scrutiny of such claims.
Lee Peeler, the President and CEO of the Advertising Self-Regulatory Council (ASRC) and Executive Vice President, National Advertising, Council of Better Business Bureaus (CBBB) recently announced that Andrea Levine, who has headed NAD for 20 years, is set to retire.
Is there a constitutional right to social media? The ongoing dialogue surrounding First Amendment concerns born out of the Internet and social media was the focus of Supreme Court oral arguments on Monday, February 27, 2017. Discussing a North Carolina law that prohibits registered sex offenders from participating in social media sites like Facebook and Twitter, the justices’ comments seemed to suggest a likelihood that they would strike down such a law on First Amendment grounds.
Many think that the Federal Trade Commission will no longer be the significant enforcement power it has been in recent decades. While time will tell how things play out with the new administration and, presumably, new FTC Commissioners, it is likely that the FTC will remain a very powerful and thoughtful consumer protection agency, focused on protecting consumers from harm. What constitutes consumer harm, however, and the appropriate remedy for noncompliance, may change under the current administration.