May 26, 2016

New FDA nutrition labels, avoiding dumb claims, and more in this issue of Advertising Law News & Analysis

6 min


Moms Won't be the Only Ones Checking New FDA Nutrition Labels

On May 20, the U.S. Food and Drug Administration (FDA) issued a final rule overhauling the design and content of nutrition labeling for foods and dietary supplements. These changes, write Venable attorneys Michelle C. Jackson, John G. Moore, Jonathan A. Havens, and Kristen R. Klesh in a recent post to the firm's advertising law blog, are sweeping and largely consistent with those proposed by the Agency in 2014.

Read the full blog post for a complete list of changes to the nutrition facts and supplement facts labels.

Read the full text of the FDA's final rule here.

Take a peek at the changes coming to the new versions of the labels.

CFPB Aims to Kill Mandatory Arbitration Clauses

Any company regulated and examined by the Consumer Financial Protection Bureau (CFPB) knows the expansiveness of the Bureau's reach and its willingness to exercise its authority. And despite challenges in Congress and the courts, the CFPB shows no signs of slowing down, write Venable attorneys Allyson B. Baker, Samuel D. Boro, and Peter S. Frechette in a recent client alert. Earlier this month, the CFPB released a notice of proposed rulemaking that would ban consumer financial companies from using mandatory pre-dispute arbitration clauses in consumer financial contracts.

As part of the rulemaking process, the CFPB is seeking comment on the scope of the proposed rule to determine whether certain products or services should not be covered.

Read the client alert to learn how the proposed rule would affect entities covered by the Consumer Financial Protection Act, including providers of consumer financial products and services offering credit cards, checking and deposit accounts, prepaid cards, money transfer services, certain auto loans, short-term small-dollar loans, and private student loans.

Read the full text of the notice of proposed rulemaking.

Venable's CFPB practice group will host a complimentary webinar on June 15, 2016 to discuss the current state of the rulemaking process and outline what companies must understand about what is coming. Click here to register for this important webinar.

FDA Says KIND Bars Can be Healthy, Chews on Standard

In a major reversal of a 2015 warning letter to KIND LLC, The FDA announced last week that the company may label its snack bars as "healthy." However, there is a catch, write Venable attorneys Randal M. Shaheen and Laura Arredondo-Santisteban in a recent post to the firms' advertising law blog.

In 2015, the FDA warned Kind that several of its products were misbranded as "healthy," and that such labeling falsely claimed that the snacks were low-fat or rich in anti-oxidants, among other things. The FDA's letter to Kind threatened regulatory action if this and other alleged violations were not corrected. In response, KIND filed a citizen petition asking the FDA to reconsider its standard for labeling products as "healthy." Because of the petition, as well as called-for change from Congress and others, the FDA plans to reevaluate its regulations concerning nutrient content claims and will permit Kind to label its snack bars "healthy," so long as it is clearly part of the company's philosophy and not part of a nutritional statement.

Read the full blog post to learn why the FDA's 22 year-old definition of "healthy" is getting a second look.

Read KIND's citizen petition here.

Avoid Dumb Claims When Touting "Cognitive Performance"

Making unsubstantiated claims that a product can make consumers smarter isn't a very smart play, writes Venable partner Leonard L. Gordon in a recent post to the firm's advertising law blog. By its own admission, cognitive claims remain a top priority for the Federal Trade Commission (FTC) as it continues to target claims that dietary supplements or learning programs can improve cognitive performance.

In its latest enforcement action in this area, the FTC just announced a proposed settlement with LearningRx Franchise Corp. The settlement, Gordon writes, demonstrates that the FTC has clearly and repeatedly expressed the position that educational or learning benefit claims require competent and reliable scientific evidence.

Read the full blog post to learn more about why the FTC is so skeptical of this type of claim, as well as what marketers making these claims must do to mitigate risk.

Read the FTC's proposed settlement order.

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The CFPB's New Arbitration Clause Ban: How to Prepare Your Organization

June 15, 2016 | Webinar

Join Venable's CFPB team for a webinar packed with practical discussion about what the CFPB's proposed arbitration clause ban means for companies and consumers. Venable attorneys Allyson B. Baker, John F. Cooney, Thomas E. Gilbertsen, Jonathan L. Pompan, and Peter S. Frechette ‎will review the current state of the rulemaking process, share their take on the Bureau's proposal from regulatory and litigation perspectives, and outline what you and your company need to know about what's ahead.

Participants are encouraged to engage in the conversation by submitting questions throughout the live event and will receive a copy of the presentation and other materials following the webinar.

Register and learn more here.

Food Marketing Institute (FMI) 2016 Legal Conference

June 19-21 | Chicago, IL

Designed for the legal leadership of the retail and wholesale food industries, Food Marketing Institute's Legal Conference will bring together general counsel, corporate counsel, as well as other corporate executives involved with legal issues. Join Venable's Randal M. Shaheen as he discusses "Recent Trends in Food Litigation and Labeling" on June 20 at the Sofitel Chicago Water Tower.

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