Pattishall IP Blog

October 22, 2009

FDA Announces Intent to Target Nutritional Claims on Food Packaging

Filed under: Advertising — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 8:02 pm

By Alexis Payne, Esq.

The Office of Nutrition, Labeling and Dietary Supplements Center for Food Safety and Applied Nutrition of the Food and Drug Administration (FDA) recently issued its “Guidance for Industry: Letter Regarding Point of Purchase Food Labeling.”  In the letter, the FDA announced its intent to take action against food manufacturers who make nutritional claims on front of packaging (FOP) food labeling that misleads consumers on the products’ health benefits.  Currently, FOP labeling is voluntary information that is intended to provide information about nutritional attributes of food.  Nevertheless, FOP labeling is subject to the provisions of the Federal Food, Drug, and Cosmetic Act that prohibit false or misleading claims.

The FDA reported that FOP labeling makes it less likely consumers will read the Nutritional Facts labels on foods, which are typically located on the side or back of food packaging.  The FDA also announced its investigation of misleading FOP labels.  Part of this investigation centers on food manufacturers’ use of symbols that expressly or impliedly advertise nutrient content claims. (more…)

October 7, 2009

FTC Announces Revised Guides on the Use of Endorsement and Testimonials in Advertising

Filed under: Advertising — Tags: , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 9:54 pm

By Alexis Payne Esq.

On October 5, 2009, the Federal Trade Commission (FTC) announced changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Guides”) that will take effect on December 1, 2009.  Under the revised Guides, advertisements that depict consumer experiences that are atypical will be required to conspicuously disclose the actual expected results.  The precursor to the Guides, in contrast, allowed advertisers to discuss atypical results as long as a disclaimer (such as “results not typical”) was included in the advertisement.

The Guides also require the disclosure of  “material connections” between advertisers and endorsers, including in blogging and “word-of-mouth” contexts.  For example, if a blogger is paid to endorse a product on his or her blog, that material connection must be disclosed in the endorsement. (more…)

June 12, 2009

New Federal Law Requires Gift Cards And Gift Certificates To “Clearly and Conspicuously” Disclose Fees and Expiration Terms

Filed under: Advertising — Tags: — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 8:57 pm

By Alexis Payne, Trademark Attorney

On May 22, 2009, President Obama signed the Credit Card Accountability, Responsibility, and Disclosure Act of 2009, which provides some federal regulation of gift certificates, store gift cards, and general-use pre-paid cards

What does the Credit Card Act require from issuers of gift cards and gift certificates?

  • Prohibits an expiration date of less than five years from the day the gift card is activated.
  • If a gift card expires after five years, requires that the terms of expiration must be clearly and conspicuously disclosed.
  • Prohibits the imposition of dormancy or inactivity fees on gift cards unless there has been no activity on the card in a twelve month period and provided that no more than one fee is charged per month.
  • Requires that dormancy or inactivity fees be clearly and conspicuously disclosed. (more…)

May 20, 2009

FTC to Study How Consumers See "Green" Marketing

Filed under: Advertising — Tags: , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 5:36 pm

Lexy Payne, trademark attorney, outlines the FTCs Study on How Consumers See “Green” Marketing.

On May 12, 2009, the Federal Trade Commission (“FTC”) announced plans to conduct a study on consumer perception of environmental advertising claims (74 Fed. Reg. 22395-22399) in connection with its review of the Guides for the Use of Environmental Marketing Claims, 16 C.F.R. § 260.1, et seq. (“Green Guides”). The FTC’s Green Guides represent interpretations of laws administered by the FTC. Further, the Green Guides specifically address environmental advertising and marketing practices and provide the basis for voluntary compliance with such laws by industry members. Specifically, the Green Guides provide guidance on making claims such as biodegradable, compostable, recyclable, recycled content, and ozone safe, while discouraging broad, unqualified environmental claims, such “eco-friendly.”

The FTC’s anticipated study was likely prompted by the increased use of environmental marketing and its effect on the consuming public. It is expected that the FTC will use this opportunity to evaluate and implement more stringent guidelines for “green” marketing campaigns. This development serves as a reminder that legal clearance for environmental claims is integral as the FTC’s scrutiny of such claims is expected to increase. The FTC will accept public comment on the proposed study through June 11, 2009.


May 7, 2009

How the recent Second Circuit decision about Google’s AdWords Service affects your company’s keyword advertising program

Filed under: Advertising, Internet — Tags: , , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 2:52 pm

Phillip Barengolts, Trademark attorney explains how the recent Second Circuit decision about Google’s AdWords service affects your company’s keyword advertising program.

In the Rescuecom Corp. v. Google, Inc. lawsuit, the Second Circuit decided that Google’s sale of a company’s trademark as a keyword through the AdWords advertising service is potentially actionable under federal trademark law – if it also is likely to cause confusion.

For a printer-friendly version, click here.

March 13, 2009

Lexy Payne, Chicago Trademark Attorney, simplifies the California Omnibus Sweepstakes Bill

Filed under: Advertising — Tags: , — Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP @ 5:30 pm

On September 30, 2008, California Governor Arnold Schwarzenegger signed into law the California Omnibus Sweepstakes Bill, Senate Bill 1400. The bill amended Section 17539.15 of the California Business and Professions Code. The objective of the bill was to prevent deceptive advertising in conjunction with the promotion of sweepstakes in California. The new sweepstakes law more closely aligns California’s sweepstakes law with the more stringent consumer protection and disclosure requirements mandated by the federal Deceptive Mail Prevention and Enforcement Act and sweepstakes laws in Texas and Colorado. The bill became law on January 1, 2009.

The amendments to Section 17539.1 impose the following requirements and prohibitions:

  • The “NO PURCHASE OR PAYMENT NECESSARY” language must be set out in a separate paragraph from the rest of the official rules. In addition, the statement must be in all capital letters, in contrasting typeface, and it must be no smaller than the largest typeface used in the rest of the official rules. If the official rules are not printed on the marketing materials, then the “NO PURCHASE OR PAYMENT NECESSARY” language must be included on the entry form.
  • The date the final winners are determined must be disclosed in the official rules.
  • A prohibition against charging a fee as a condition to receiving information about a sweepstakes or prize.
  • A prohibition against falsely representing that a person receiving the sweepstakes offer has been specially selected.

Visit for additional Advertising and Promotions information.

View Ms. Payne’s biographical information here.

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