SCOTUS closes one door on TCPA class action defense, the Holy Grail of environmental marketing, and more in this edition of Advertising Law News & Analysis

4 min


Venable Adds Depth to State AG, FDA, and Advertising Practices

Venable announced today that Doreen L. Manchester, who has extensive experience handling Food and Drug Administration (FDA), Federal Trade Commission, and state attorney general enforcement actions involving marketers and manufacturers of food, beverage, personal care, over-the-counter, and dietary supplement products, has joined the firm's Washington, DC office.

Read Venable's press release to learn more about Ms. Manchester.


Supreme Court Closes One Door. Did It Open Another?

In January, the United States Supreme Court handed down its decision in Campbell-Ewald Co. v. Gomez, an important case for telemarketers and other companies operating under statutes with defined damages for class actions, such as the Telephone Consumer Protection Act (TCPA). Although the court closed the door on one strategy for defendants to disarm threatened consumer class actions, write Venable partners Jeffrey D. Knowles and Daniel S. Blynn in the February edition of the DRMA Voice, it did appear to leave another avenue of attack for companies attempting to fend off class actions involving statutorily defined damages.

Read the full article to learn how the Court's decision may have opened a new avenue for defusing some threatened class actions, including those involving the TCPA.

NAD Breaks Down Cupful o' Claims

Finding materials that will quickly biodegrade in landfills has been called the "Holy Grail of environmental marketing," write Venable partners Amy Ralph Mudge and Randal M. Shaheen in a recent post to Venable's advertising law blog. And just like in that Indiana Jones movie, the Holy Grail might not look like what you'd expect – in this case a polystyrene cup.

Judging by a recent National Advertising Division (NAD) decision, Mudge and Shaheen write, marketers may not have found that Grail just yet. New Win Cup Holdings' advertising claims about the biodegradability of the Vio Cup, a polystyrene cup manufactured with a special additive, were so specific and qualified that during its consideration of a competitor challenge, NAD did not find fault with the qualification of the claims. However, the self-regulatory body did take New Win to task for the prominence of its disclosures. NAD also found it likely that consumers would not have sufficient understanding of the technical terms used in the claims to understand that the necessary facilities may not be available in their community.

Read the full blog post to learn more about the lengths New Cup took to qualify its Vio Cup claims.

Read NAD's press release about the decision here.

Read the FTC's Green Guides to study up on the technical terms New Win used in its marketing.

Faking It Is a Growth Industry

Counterfeiters may be busy all year long, but the 2015 holiday season may well have set records for the volume of bogus goods entering the marketplace, writes David P. Schulz in the February edition of Stores magazine.

Venable partner Marcella Ballard weighed in on the mind-boggling scope of the counterfeiting problem, telling the magazine "mouthwash, batteries, clothing, pharmaceuticals, brake pads, every consumer product imaginable is a target of counterfeiters."

And, Ballard told Stores, e-commerce and m-commerce are fueling the counterfeiting fire.

Read the full Stores article here.

Same-Sex Harassment Decisions Go Both Ways

A pair of recent federal appeals court decisions illustrate the importance of an effective harassment policy that prohibits same-sex harassment, and of a prompt and meaningful response to allegations of such behavior, writes Venable partner Ronald W. Taylor in a recent client alert.

Although the Sixth Circuit's ruling in Smith v. Rock-Ten Services, Inc. and the Third Circuit's ruling in Burgess v. Dollar Tree Stores, Inc. reached differing conclusions, Taylor writes that both cases affirm the generally accepted notion that harassment must be sufficiently pervasive and severe to support a claim that is actionable.

Read the full alert to learn more about both cases and critical lessons all companies can draw from the Smith decision.

Upcoming Events:

Electronic Retailing Association's Great Ideas Summit

The Great Ideas Summit brings together the direct-response industry's most influential leaders to hold high-powered meetings, close global deals, and develop new digital marketing strategies. Join Venable partners Randal M. Shaheen and Claudia Lewis for their Masters Series session, titled "Matching Claims to the Evidence: Brainstorming with the Experts," on February 23 at 1:30 p.m. ET.

Grocery Manufacturers Association Legal Conference

February 23-25 | Rancho Mirage, CA

The GMA Legal Conference is the preeminent gathering for consumer packaged goods professionals focused exclusively on issues that affect food, beverage, and consumer product manufacturers. Top in-house counsel, defense attorneys, and regulatory experts will cover a wide array of legal topics, with an emphasis on how to protect the company brand from litigation risks and complying with government regulations.