Advertising can be a hazardous minefield for the unwary. In previous articles posted on CorpCounsel.com in September and November, we examined how apparent safe havens—advertising claims based on surveys and studies, and those based primarily on puffery—can conceal false advertising pitfalls. When companies make objective claims that are not adequately supported by evidence, even those awash in a sea of puffery, they are vulnerable to false advertising suits by both consumers and the government.
But what about the apparently even safer safe haven of advertising claims preapproved by a regulatory agency, such as qualified health claims preapproved by the U.S. Food and Drug Administration (FDA)? Perhaps not surprisingly, advertisers can still find themselves the target of false advertising suits for exaggerating the scope of the claims blessed by the FDA. Perhaps more surprisingly, false advertising plaintiffs—consumers, competitors and the Federal Trade Commission (FTC) alike—may be challenged in their efforts to prosecute false advertising suits by legal hurdles like primary jurisdiction and claim preclusion.
Baby Food Bellwether
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