Jai Singh is a partner and co-chair of Foley’s Consumer Products Team, as well as the vice chair of the firm's Consumer Law and Class Action Practice Group. He routinely counsels consumer product clients on forming effective and compliant advertising and marketing strategies. In this video, Jai discusses three ways to achieve compliant advertising, including substantiating claims, avoiding deceptive claims, and complying with applicable regulations.
An advertisement, for legal purposes, is a very broad term that covers almost all consumer facing statements and representations made in a wide array of places, including product labels, webpages, print media, brochures, and even product instructions and manuals.
The goal of advertising counseling is to have a consumer product with compliant marketing claims and other messaging or statements made to consumers.
All objective advertising must be substantiated. That is, there must be a reasonable basis for the claim or representation. The level of substantiation varies depending on three things:
The type of claim being made;
The support required for the claim; and,
The manner in which the claim is being conveyed to consumers.
The claim cannot be deceptive or misleading, which is measured by an objective reasonable consumer standard.
The claim has to comply with any applicable rule or regulation. This assessment usually involves having knowledge and experience with the regulations and guidance issued by the FTC, the FDA, the NAD, or State Attorneys General.
Preventative counseling also involves having an understanding of current litigation trends and asserted theories of liability in false advertising cases.
Having compliant advertising mitigates the threat of consumer class actions, competitor actions, and public enforcement actions.
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