Advertising and Promotion
An advertising campaign, however memorable, can cause legal troubles for the advertiser if the claims cannot be adequately supported or it runs afoul of laws that govern product labeling. Keller and Heckman helps clients comply with applicable labeling, safety, and other requirements, while also working with them to implement compliant advertising and marketing campaigns. Our clients include manufacturers and retailers of connected products, consumer products (such as appliances, clothing, electronics, and toys), foods, drugs, cosmetics, and medical devices, as well as household cleaners, pesticides, chemicals, and packaging.
We guide clients through the intricacies of federal and state labeling requirements related to nutrient content, energy efficiency or savings, safety, product origin, and Made in the USA claims. We advise clients on advertising claims related to product performance, market position, health, environmental and sustainability benefits, cosmetic benefits, and device and drug efficacy. Tapping into the technical expertise of our scientists, when needed, enables us to recommend scientific approaches to substantiating claims and to critically assess complex technical substantiation data. We also work with clients to assess a range of green claims.
With rapidly changing technology affecting internet and mobile advertising almost daily, our Advertising practice stays ahead of the game. We work with regulatory bodies to advocate for sensible policies governing internet and mobile advertising, covering transnational, legal, and regulatory issues, as well as the important role of advertising and privacy self-regulation. Our professionals closely track relevant laws and guidance, including ones impacting the expanding area of environmental and sustainability claims.
- Defended advertisers offering a wide range of products and services in FTC, state Attorneys General, and other investigations and enforcement proceedings involving alleged false, deceptive, and unfair advertising and marketing
- Challenged and defended advertising challenges at networks, CARU, and NAD and its appeals body, NARB
- Worked with advertising clearance officials for the national broadcasting networks and other media
- Assisted client in developing internal processes for reviewing and approving claims and creating and maintaining substantiation files
- Advised clients on advertising and privacy aspects of mobile and in-app advertising and disclosures to identify advertising
- Provided guidance on disclosing material connections when third parties make claims about a company or its products
- Assisted client in developing sweepstakes, contests, coupons, gift cards, and other promotional devices
- Defended advertisers named in both federal and state class actions and private attorneys’ general actions for alleged false advertising, including cases brought under state statutes, such as those in California
- Counseled advertisers on all issues regarding internet advertising and privacy, participated in FTC workshops and proceedings to advance the development of public policy in these areas, and represented our clients’ interests in related disputes
- Worked on national and international self-regulatory programs for advertising
- Ranked Tier 1 in Advertising Law by U.S. News – Best Lawyers® “Best Law Firms”
Areas of Focus
Advising clients on claim risks, ways to qualify or modify claims to reduce risk, and approaches to develop data to support claims; providing guidance on disclosing material connections when employees or third parties make claims about a company or its products and complying with care labeling requirements, flammability labels and warnings, energy claims. and compliance with energy and product-specific labeling obligations; advising on food, drug, medical device, cosmetic, and dietary supplement labeling and advertising; and advising on advertising and labeling for a diverse array of consumer and industrial products
Counseling clients on compliance with the Federal Trade Commission (FTC) Guides for the Use of Environmental Marketing Claims (Green Guides), as well as state and international environmental claims requirements
Advising clients on “Made in USA” claims under FTC guidelines and state laws
Assisting clients in developing sweepstakes, contests, coupons, gift cards, and other promotional devices and advising on privacy aspects of collecting personal data in connection with promotions and contests
Guiding clients on disclosing material connections, “native advertising,” and complying with the FTC’s Endorsement and Testimonial Guidelines
Counseling clients on the application of the Children’s Online Privacy Protection Act (COPPA) and other issues related to advertising to children and teens and advising on self-regulatory guidelines
Advising clients on obligations under the Nutrition Labeling and Education Act of 1990 and the Dietary Supplement Health Education Act of 1994 and on making “structure/function” claims