We practice before each federal agency that addresses advertising issues, including the Federal Trade Commission (FTC), the Food and Drug Administration (FDA), the Federal Communications Commission (FCC) and the Bureau of Alcohol, Tobacco and Firearms (BATF).  We routinely handle Lanham Act false advertising, unfair competition and trademark infringement claims.  We also have extensive experience before the National Advertising Division of the Council of Better Business Bureaus (NAD)-a self-regulatory body that resolves complaints associated with Internet and national broadcast and print media ads.

Wiley Rein advertising attorneys also understand the interrelationship between the various dispute resolution fora. For example, FTC actions often prompt the filing of consumer class actions and can spur activities by the State Attorneys General.  Similarly, advertising issues that the NAD is asked to address may lead to FTC enforcement proceedings.  We also monitor closely advertising legislative activity, recognizing that congressional activity and oversight has significant effects on the activities of the FTC, FDA and the FCC.

FTC Regulation

Wiley Rein has long represented companies, advertising agencies and others involved in advertising before the Federal Trade Commission (FTC) in significant advertising matters.

Wiley Rein attorneys are actively engaged in FTC rulemakings, policy and enforcement proceedings affecting advertising.  For example, we have actively represented client interests in FTC actions regarding online behavioral targeting and consumer data privacy, in which the FTC is shaping enforcement policy for the years to come.  Similarly, the FTC “Green Guides” on environmental marketing and advertising claims have had significant influence on environmental advertising claims and on other agencies and bodies responsible for determining whether such claims are misleading.  The FTC also has issued guidelines for food nutrition claims and is revising its guidelines associated with advertising endorsements and testimonials.  Wiley Rein has actively participated in FTC rulemakings affecting consumer marketing and advertising, including proceedings to implement the CAN-SPAM Act, the Children’s Online Privacy Protection Act, the Telemarketing Sales Rule (including Do Not Call) and others.  

Representative experience includes:

• Filing extensive comments on FTC initiatives regarding behavioral advertising and consumer data privacy.
• Obtaining ruling that bona fide newsletters are not subject to CAN-SPAM requirements.
• Representing clients before the FTC in significant advertising cases, including major suppliers of food and other consumer products, pharmaceuticals and electronic equipment. 
• Convincing the FTC to administratively close investigations into clients’ consumer product advertising.
• Bringing advertising complaints to the FTC on behalf of clients adversely affected by a competitor’s advertising claims.

FDA Regulation

Partners James N. Czaban, Bert W. Rein and William A. McGrath regularly represent clients before the Food and Drug Administration (FDA), which has jurisdiction over prescription drug advertising. Wiley Rein thus provide clients with an in-depth understanding of the close working relationship between that agency and the Federal Trade Commission (FTC), which has applied some FDA food labeling rules and regulations to advertising for food products.

Representative experience includes:

• Advising clients in the food & beverage, nutritional supplement, cosmetic and consumer product industries on the development of claims that will avert FDA scrutiny as potentially qualifying the product as a drug or device, violating nutritional content or health claim limitations or otherwise implicating FDA regulatory requirements.
• Working closely with clients to ensure that direct-to-consumer prescription drug campaigns provide fair balance and otherwise comply with all FDA requirements and advocating in front of FDA.
• Advising clients on permissible product claims under Over-the-Counter (OTC) monographs or dietary supplement "structure/function" requirements.
• Counseling clients on avoiding potential false advertising litigation for FDA regulated products based on FDA claims regulation and consulting with product liability counsel where such claims have generated class action suits under state Unfair Trade Practice laws.

Lanham Act and False Advertising

Wiley Rein has represented many clients in courts throughout the United States in numerous false advertising and trademark cases.  Specifically, the firm has represented AMF, Beatrice, Dial, Hormel, Kohler and Nestle in Lanham Act proceedings.  For example, we successfully defended Hormel against charges that ConAgra's Healthy Choice® mark had been infringed, ConAgra v. Hormel, 990 F.2d 368 (8^th Cir. 1993) and Karyn K. Ablin, successfully defended Kohler in a leading Lanham Act trademark case.  I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27 (1st Cir. 1998); 118 F. Supp. 2d 92 (D. Mass 2000).

In the area of false advertising, federal courts have increasingly held advertising agencies liable for large monetary damages. Similarly, in right-of-publicity cases, large monetary damages were assessed against advertising agencies in cases brought by television personalities Vanna White and singer Tom Waits. 

Wiley Rein attorneys also represent clients in proceedings against network advertising.  Each of the four major television networks - ABC, CBS, FOX and NBC - require advertisers to have in hand adequate substantiation for advertising claims made in proposed commercials and set out procedures for companies challenging competitors' advertising.

Green Advertising

Wiley Rein attorneys have represented clients seeking to challenge environmental advertising.  This will continue to be an extremely active area during the administration of President Obama.  Our attorneys are intimately familiar with the Federal Trade Commission's (FTC's) "Green Guides" relating to environmental marketing claims and provide guidance on specific green claims, such as biodegradable, compostable, recyclable, recycled content, and ozone safe.  We also closely following the FTC's current proceeding to update the guides.

We recently successfully challenged environmental advertising claims in a proceeding before the National Advertising Division (NAD).  Wiley Rein client Continental Products challenged the advertising claims of GP Plastics, a competing provider of plastic bags used in the delivery of newspapers. Among the claims challenged were that GP's plastic bags are: "100% oxo-biodegradable," "disposable through ordinary channels," go "from front lawn to waste bins to the landfill," "completely recyclable" and a whole series of general claims of environmental benefits, such as "eco-friendly," "environmentally friendly," promise a "green tomorrow" and "saving the planet."  In its decision, the NAD also recognized the importance of eliminating false and deceptive environmental advertising claims.  "Because consumers cannot typically verify for themselves the truth of environmental claims, advertising self-regulation is playing an increasingly significant role in ensuring that environmental claims are truthful, non-misleading and adequately substantiated."

Online and Mobile Advertising and Marketing

Wiley Rein attorneys, led by William B. Baker, actively participate in legal and policy issues affecting consumer marketing and data security and frequently appear before the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), the Congress and the courts on legislative, regulatory and judicial privacy matters.

Representative experience includes:

• Advising businesses on online and mobile marketing issues arising under the CAN-SPAM Act, the Electronic Communications Privacy Act, the Do Not Call regulations, the regulation of text message marketing, and behavioral targeting.
• Helping a wide variety of clients, ranging from carriers to publishers to marketing firms, in shaping their online and mobile advertising and marketing efforts in ways that comply with federal and state legal and regulatory initiatives.

Class Action Lawsuits

Wiley Rein attorneys have handled numerous types of class actions, including material damage, asbestos, franchise, and wage and hour litigation. Our approach to class action cases combines our knowledge of the rules and procedures governing class action litigation with innovative legal strategies and aggressive litigation. Through this approach, we are often able to defeat the threat of class action litigation for our clients in the initial stages of class certification.

A sampling of our class action litigation includes:

• Secured dismissal of all claims against our clients Molson Coors and Coors Brewing Company, as well as numerous other American manufacturers and distributors or alcoholic beverages, in four class actions and three subsequent appeals in the state and federal courts of Ohio, Colorado, Wisconsin and the District of Columbia.  The suits alleged that industry advertising was to blame for underage drinking.
• Obtained summary judgment in favor of Verizon Hawaii Inc. in a putative class action suit alleging that the company violated state consumer protection laws by misleading consumers about the costs and need for its Touch Calling service. The lawsuit sought tens of millions of dollars in retrospective damages and injunctive relief against the company. The Circuit Court found that both the filed-rate doctrine and the doctrine of primary jurisdiction barred plaintiffs' claims (Balthazar v. Verizon Hawaii Inc., No. 03-01-0139 (Haw. Cir. Ct. July 30, 2004)).
• Defended Kaiser Gypsum and Kaiser Cement over a 12-year period in a series of nationwide and statewide class action lawsuits seeking damages for the presence of asbestos in buildings. These included the nationwide action on behalf of all schools and the similar nationwide action on behalf of all colleges and universities and statewide actions in Hawaii, West Virginia and South Carolina. Mounted vigorous defenses and ultimately were dismissed without payment.
• The defense of a major international airline that was sued by a class of passengers claiming that fares had been fixed in violation of the antitrust laws. The case was settled after class certification issues had been fully briefed. At that time, it was the largest "coupon" settlement ever-i.e., the class members received discount coupons for future travel instead of cash.

Cases in which we defeated class certification include:

• Defeated class certification in false advertising/consumer fraud class action in Illinois state courts on behalf of top-10 fast food franchisor. Case was not pursued by plaintiffs following appellate affirmance of denial of class certification.
• Successfully represented a global engineering and manufacturing company in defeating a proposed nationwide class action alleging that lead leaching from brass pumps had contaminated proposed class members' drinking water.
• Represented leading tobacco company in defending a proposed class action on behalf of all smokers in the District of Columbia and was selected co-liaison counsel. The court denied class certification twice.
• Defeated class certification in a Fair Debt Collection Practices Act (FDCPA) case in the Northern District of Texas, in the first major class action certification decided following the Fifth Circuit Court of Appeals' decision in Allison v. Citgo. (Sibley v. United Student Aid Funds, Civ. No. 3:96-CV-0816-D (N.D. Tx. 1998)).

First Amendment

Wiley Rein attorneys have played a leading role in a number of cases challenging the power of the government to regulate the content or placement of ads. The firm has filed amicus briefs on behalf of the American Advertising Federation (AAF), the American Association of Advertising Agencies (AAAA) and other media groups in prominent U.S. Supreme Court cases defending the protection of commercial speech. 

The group's experience includes:

• Filed a series of substantial comments to the Food and Drug Administration (FDA) on a broad collection of commercial speech issues, including a comprehensive legal analysis of the First Amendment implications of all phases of the FDA's drug regulatory scheme and a First Amendment critique of the FDA's recent efforts to revise its regulatory policies on "direct-to-consumer" print advertising.
• Successfully represented Google Inc. in copyright infringement lawsuit filed by French news agency, Agence France-Presse.  Firm attorneys reach a confidential settlement that allowed Google to continue to use the agency's news and photos.
• Successfully defended the interests of medical journal publishers to select and edit scientific articles without regard to source, in the first case to address false advertising claims under California law following the Supreme Court's landmark Nike case.
• Successfully defending a major tobacco product manufacturer's commercial speech rights against state regulations that effectively banned point-of-purchase product advertising. (Lorillard v. Reilly, 533 U.S. 525 (2001)).

Advertising Transactions

Drawing on the expertise of attorneys in our Business and Finance Practice, the Advertising Practice Group handles advertising contract negotiations, which involve licensing of trademarks, logos, patents, musical compositions and soundtracks, motion picture and television film clips, literary works and related entertainment properties.  We also negotiate sponsorship agreements, product placements and commercial tie-ins.  Our attorneys are guided by principles of responsiveness, efficiency and creativity, with an emphasis on finding acceptable paths to achieve our clients' business goals.

Contact Us

Scott D. Delacourt
202.719.7459 | sdelacourt@wileyrein.com