A few minutes on false advertising

I came in very late to Arnold & Porter’s webinar Competitor False Advertising Litigation: A Mock Temporary Restraining Order Hearing, but I caught a couple of interesting points: David Mallen of NAD made the point that NAD puts the burden of substantiation on an advertiser because the advertiser is legally obligated (under the FTCA) to have substantiation before making a claim. Will evaluate implied claims without a survey, but often consider surveys. Always a little suspicious when an advertiser claims to have relevant evidence but doesn’t submit it; confidentiality is possible.

Mallen said ¼ to 1/3 of NAD cases are monitoring cases (self-identified). Hot issues: health claims, telecommunications, green claims; maybe endorsements, testimonials, blogs. Dietary supplement makers are trying to clean up industry, using self-regulation a lot recently.

On average NAD cases take 3-6 months, but NAD has been swamped and complex cases may take longer; one can expedite somewhat by waiving a rebuttal.

Judge Liam O’Grady made the point that judges are going to be more willing to proceed on a limited record when the relief requested is more limited: if the product has yet to launch/the ad campaign has yet to launch; if it would be easy to discontinue the advertising given how the advertising is delivered.

Randy Miller, A&P: Sometimes you have to draw a line in the sand even if the direct economics don’t work out, to let the competitor know you will litigate, to stave off worse behavior down the line, even knowing it will cost a lot of money and suck up a lot of marketers’ and lawyers’ time and energy.

By the way, if you’re interested in advertising law but not following the ABA Private Advertising Litigation Subcommittee of the Antitrust Section, you should be! The free updates are great and there are a bunch of continuing education events like this one.