A mostly empty slack-fill class action, how a natural claim burned a sunscreen brand, and more in this issue of Advertising Law News & Analysis

4 min

Court Finds Slack-Fill Class Action Mostly Empty

Last month, the Southern District of New York dismissed with prejudice a putative consumer class action alleging that containers for Muscle Milk protein powder violated New York consumer protection laws because they were approximately one-third empty at the time of purchase. The case involved "slack-fill," the empty space in a food product container – think of the space in a bag of potato chips. There can be lots of good and necessary reasons for extra space in a container, write Venable attorneys Amy Mudge and Stephen Freeland in a recent post to the firm's advertising law blog. However, unless your use of that space fits into one of the six permissible categories outlined in Food and Drug Administration (FDA) regulations, your packaging can be ripe for an attack.

Unfortunately, the eyeball test of "my product is as full as my competitors' products" is not a recognized exception. Read the full post to learn how you can mitigate the risk of slack-fill litigation.


The FTC Weighs in Further on All Natural Claims

Marketers relying on "all natural" claims also may feel like crying these days, writes Venable partner Len Gordon in a recent post to the firm's advertising law blog. Much of the misery stems from confusion over the use of the term "natural" in food. The FDA has requested public comments on the use of the term, and issued rather circular nonbinding guidance, but thus far has not issued regulations. The FTC also has refused to issue guidance regarding natural claims, but that has not stopped the Commission from pursuing marketers making "all natural" claims that the FTC deems deceptive.

One recent FTC litigation against California Naturel, an "all natural" sunscreen, demonstrates how easy it is for "natural" claims to burn companies.


Should the FTC Pick up the Pace?

In the second installment of their series on their "wish list" for the new FTC under the incoming administration, Venable partners Amy Mudge and Randy Shaheen write that they feel the need for speed, at least at the FTC.

FTC investigations proceed slowly. One approach the FTC has used to speed things up, such as in Operation Full Disclosure, is to issue warning letters. Another solution could be adapting the Bureau of Competition's "Quick Look" process, which determines whether a full-blown merger investigation is warranted.

Read the full post to learn why there could be big advantages to speeding things up, even though the first instinct of a marketer – and his or her attorneys – is to draw out any FTC investigation as long as possible.



Brand Protection

Managing and protecting a brand in today's global marketplace is among the largest challenges brand owners face. In the current edition of the firm's Advertising Law Toolkit, Venable partners Marcella Ballard, Roger Colaizzi, Josh Kaufman, and Justin Pierce provide best practices that brand owners can implement to minimize the impact of counterfeits, knockoffs, and diverted product.



Legal Issues of Running Social Media and Mobile Sweepstakes and Contests

January 12, 2017 | Webinar

As consumers shift more of their time and attention from traditional forms of media to social and mobile media, marketers are devoting more resources to reaching eyes and ears through new media. As the regulatory landscape governing social and mobile media continues to evolve, marketers utilizing new media must adapt and be cognizant of potential legal issues. This live topic, presented by Venable partner Melissa Steinman, will provide an in-depth review of the legal issues relating to conducting a prize promotion through social and/or mobile media.

Affiliate Summit West

January 15-17, 2017 | Las Vegas, NV

Join Venable attorneys Roger Colaizzi, Damon Wright, Ari Rothman, and Shahin Rothermel at Affiliate Summit West, January 15-17, 2017 at the Paris Las Vegas Hotel. This conference delivers networking and educational events geared towards affiliates and merchants, and is aimed at providing insight into the evolving landscape of affiliate marketing.

Digital Entertainment World (DEW)

February 1-2, 2017 | Marina Del Rey Marriott, California

Join Venable at DEW, the annual expo for the digital entertainment industry held in Marina Del Rey, California. DEW is the only conference that is inclusive of the complete digital content ecosystem, with the mission to provide a platform for leading intellectual property rights holders from video, music, games and publishing to access the entire digital value-chain of technology and service providers, digital distributors and device manufacturers, to build the partnerships necessary to create and monetize digital content across all significant platforms. Be sure to attend Venable partner Nicholas DePalma's panel, "How Augmented Reality & Geolocation are Shaping the Future of Games," on February 2 from 3:30 pm to 4:00 pm.

Electronic Retailing Association's Great Ideas Summit 2017

February 27-March 1 | San Juan, Puerto Rico

Join Venable at The Great Ideas Summit, an annual conference that brings together the direct response industry's most influential leaders to hold high-powered meetings, close global deals, and develop new digital marketing strategies.