The National Advertising Division is holding its annual conference this week in New York, and Foley Hoag is in attendance for what many consider to be the leading conference of its kind. Day One saw an impressive line-up of panelists and speakers, beginning with an address by Federal Trade Commission Chairwoman Edith Ramirez, who outlined areas of particular focus over the coming year: weight loss claims, cognitive benefit claims, and celebrity-hyped claims, among others.
The speakers have addressed a number of hot topics that will likely dominate the false advertising landscape over the coming year.
For example, speakers from NAD addressed the oft-made complaint that NAD decisions provide a roadmap for plaintiffs’ attorneys to bring consumer class actions. Not so, according to NAD. Judges have lately begun to adopt the view that a NAD determination that an ad lacks substantiation does not satisfy the plaintiff’s burden of pleading and ultimately proving that the ad was false. In other words, class plaintiffs must have a good faith basis for pleading that an ad is actually false, not simply unsubstantiated.
In addition, a panel discussing trends in consumer class actions highlighted effective strategies for dismissing complaints alleging misleading food and beverage labels and, when outright dismissal is not possible, strategies for avoiding class certification.
Finally, U.S. District Court Judge Loretta Preska of the Southern District of New York gave a talk highlighting what lawyers should think about when presenting a false advertising case at trial. Bottom line: (1) Keep it simple, (2) Use an expert who can relate to the fact finder, and (3) Don’t shy away from the use of technology.