Advertising and Promotion

Keller and Heckman’s advertising attorneys advise clients on how to avoid advertising and promotion disputes and how to comply with relevant laws. We vigorously represent our clients’ interests when disputes arise or are initiated in demand letters between competitors; media review and clearance; self‑regulatory and alternative dispute forums; federal and state regulatory forums, and federal and state court. We are also closely involved in developing self-regulatory guidelines on advertising and marketing with bodies such as the Children’s Advertising Review Unit (CARU) and the International Chamber of Commerce (ICC).

Our attorneys counsel clients in matters arising under various statutes, including the Lanham Act and the Federal Trade Commission Act, as well as the so-called “little FTC Acts” implemented by the states and product-specific labeling laws. The Lanham Act provides a remedy for competitors to seek redress for false or misleading advertising and promotional claims, as well as provides the legal framework for registering trademarks and prosecuting trademark infringement. The Federal Trade Commission Act is the primary federal weapon against false or misleading advertising claims; FTC enforcement decisions serve as precedents to resolve disputes under other statutes.

Keller and Heckman attorneys are particularly active in the developing area of food and dietary supplement advertising and labeling issues in the wake of statutory and regulatory changes brought about by the Nutrition Labeling and Education Act of 1990 and the Dietary Supplement Health Education Act of 1994. Those laws and the regulations under them define and standardize many nutrient content and health claims and provided new opportunities for making so‑called structure/function claims. We are closely involved in the debates about advertising and obesity. We also have been primary participants in the development of the FTC’s “green claim” guides.

Capitalizing on our considerable experience in food labeling and environmental issues, and the technical expertise of our scientists, Keller and Heckman is at the forefront of advising clients on advertising regulatory policy at the FTC. The Commission has reconciled its mandate to ensure the free flow of truthful information with the Food and Drug Administration’s more restrictive labeling policies, with environmental groups’ pressures to limit environmental claims and with the challenge of new media, including the Internet.  Keller and Heckman attorneys continue to be involved in FTC investigations and enforcement proceedings relating to nutrient content, health, environmental and sustainability claims in advertising.

We work extensively with clients on issues such as Textile Fiber Products Identification Act (TFPIA) and care labeling requirements, flammability labels and warnings, energy claims and compliance with energy labeling obligations. We also advise clients on sweepstakes, promotions, new issues related to “native advertising,” and compliance with the FTC’s Endorsement and Testimonial Guidelines. With state laws, like California’s “Made in the USA” law, proliferating, and specific warnings required for certain products, we advise clients on ways to make compliant claims. We also work with clients to evaluate technical substantiation files and to recommend processes for review and approval of claims and substantiating data.

Finally, we are actively involved in the developing law and policy related to internet and mobile advertising, including transnational legal and regulatory issues particular to this medium, and on laws, policies and self-regulation guidelines applicable to advertising and marketing in digital media and advertising and marketing to children.

Following are examples of representative matters frequently handled by our advertising and labeling attorneys:

  • Evaluation of claims and substantiation – our attorneys advise on claim risks, ways to qualify or modify claims to reduce risk, and approaches to develop data to support claims.
  • Contests and promotions – our attorneys assist clients in developing sweepstakes, contests, coupons, gift cards and other promotional devices.
  • Endorsements and testimonials – our attorneys provide guidance on disclosing material connections when employees or third parties make claims about a company or its products.
  • Advertising review procedures – our attorneys assist clients in developing internal processes for reviewing and approving claims.
  • Mobile and in-app advertising – our attorneys advise clients on advertising and privacy aspects of mobile and in-app advertising and disclosures to identify advertising.
  • Advertising clearances before the national broadcasting networks and other media - our attorneys work with clearance officials and are conversant with the full range of substantiation requirements of the media;
  • Challenges of competitive advertising before the networks and the National Advertising Division (NAD) and CARU - our attorneys challenge and defend challenges at the networks, the NAD and its appeals body, the National Advertising Review Board;
  • FTC investigations and enforcement proceedings relating to alleged false, deceptive, or unfair advertising and promotion - our attorneys defend advertisers with respect to a wide range of products and services;
  • False advertising disputes in state and federal courts and in alternative dispute resolution proceedings - our attorneys represent business plaintiffs and defendants in actions for injunctions and damages in Lanham Act false advertising, advertising contracts, trade dress, and common law unfair trade practice cases;
  • Defense of consumer class actions based on allegedly false advertising claims - our attorneys defend advertisers involved in both federal and state class actions and private attorneys’ general actions for allegedly false advertising, including cases brought under liberal state statutes such as those in California;
  • Internet advertising and privacy – given the growing intersection of advertising and privacy, our attorneys counsel advertisers on all issues, participate in the development of public policy in these areas, and represent our clients’ interests in related disputes; and
  • Children’s advertising - our attorneys are well-versed in special rules and sensitivities associated with advertising to children, and are actively engaged in the development and application of self-regulatory guidelines in this area.

For more information on Keller and Heckman’s Advertising and Labeling capabilities, please email advertising@khlaw.com or visit our website at www.khlaw.com.



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