Advertising: The Federal Trade Commission and Private ...

Advertising: The Federal Trade Commission and Private Rights of Action

? 2012 Venable LLP 1

Agenda

FTC's Role and Authority Claim Substantiation Private Rights of Action

? 2014 Venable LLP 2

FTC's Role and Authority

FTC Authority

Under the Federal Trade Commission Act, an "advertisement" subject to FTC jurisdiction can include marketing materials in any media--print, electronic (online), television, radio, or verbal representations of sales staff.

The FTC may challenge an advertisement, if it is:

? False or deceptive ? Likely to mislead reasonable consumers ? Likely to influence consumer purchasing decisions or

otherwise affect important consumer decisions

? 2014 Venable LLP 3

FTC's Role and Authority

FTC v. FDA

FTC has primary jurisdiction over advertising for food, OTC drugs and cosmetics

FDA has primary jurisdiction over prescription drugs and labeling for food, OTC drugs and cosmetics ? FDA broadly interprets "labeling" (e.g., websites referenced on the label brings all website content under FDA jurisdiction)

? 2014 Venable LLP 4

Claim Substantiation

FTC Substantiation Standard

? "Reasonable Basis" for advertising claims

? What is a "reasonable basis?"

? Pfizer Factors (1972) ? Type and specificity of claim ? Type of product ? Consequences of a false claim ? Degree of consumer reliance ? Type and accessibility of evidence

? 2014 Venable LLP 5

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