Practice

Advertising & Marketing Litigation

Protecting your business’s reputation

Foley Hoag’s Advertising & Marketing Litigation practice handles legal disputes against competitors, consumer classes and before government agencies. We employ the same incisive, analytical approach, combined with steadfast advocacy and the confidence that comes with long experience, no matter what the challenge and what the venue. 

Our Advertising & Marketing Litigation lawyers have deep knowledge of the different falsity and substantiation standards that apply in investigations and litigations before the Federal Trade Commission (FTC), state and local government agencies, the National Advertising Division (NAD) and all kinds of private civil litigation, as well as the procedural ins and outs and best tactics to help defend our clients’ advertising and marketing against each type of challenge.
 
When your competitor’s advertising is disparaging your product, making unfair comparisons, or misleading consumers about its own product or service, our advertising litigation team is just as adept at challenging false and misleading advertising. Attorneys in Foley Hoag's Advertising & Marketing Litigation practice have decades of experience challenging advertisements in all industries before the NAD and in federal court, and defending our clients before the FTC and state Attorneys General. We help clients determine the best strategy for shutting down deceptive competitor advertising, and then execute whichever strategy is most appropriate with equal effectiveness borne of extensive experience.

Areas of Focus

Our lawyers have a wide range of advertising and marketing litigation experience, including:
  • Consumer Class Actions
  • National Advertising Division (NAD) challenges
  • Lanham Act Advertising Litigation
  • Government Investigations & Enforcement

Experience

CONSUMER CLASS ACTIONS

  • Represented numerous consumer products companies in proposed class actions based on allegedly false advertising and marketing practices, often avoiding certification of a class.
  • Worked with an infant formula manufacturer in a class action alleging misleading communication of allergy information.
  • Defended a beverage manufacturer from class-action allegations that its label overstated the amount of the featured juice contained in its product.
  • Advised several packaged food companies in class actions alleging false or misleading labeling and featuring of ingredient and nutrient content.
  • Handled actual and proposed class actions around the country alleging that our client falsely advertised insurance policies, defeating class action certification and obtaining favorable verdicts, dismissals or settlements in all cases.
  • Defended a consumer class action against health club chains and transportation companies based on alleged illegal terms in its member agreements, obtaining a dismissal that was affirmed on appeal.
  • Advised numerous food and beverage companies against class allegations of overstated nutritional claims and the false implication that their products are “natural,” “wholesome” or “nutritious.”


NATIONAL ADVERTISING DIVISION

  • Brought an NAD action based on a comparative advertising campaign, resulting in a successful and groundbreaking decision providing guidance as to whether and how advertisers can recirculate social media posts of consumers.
  • Challenged misleading comparisons of credit card rewards and redeemability.
  • Defended a client accused of violating NAD’s little known anti-disparagement and anti-denigration rules in the context of a puffery-based ad campaign.
  • Won a challenge against a competitor’s comparative claims of how much area is covered by competing cans of spray paint.
  • Won a challenge on whether a beverage is misleadingly disparaged when an actor is shown discarding it, with apparent disgust, in favor of the advertised beverage.
  • Defended the disputed biodegradability of plastic newspaper delivery bags.
  • Defended a house paint’s advertised ability to reduce ambient odors in rooms with which it is painted.
  • Fended off claims of inadequate substantiation for superior skin moisturization in a beauty product.
  • Worked to substantiate a client’s claim for a cholesterol benefit of a butter substitute product.
  • Helped to claw back allegations that something “smells” about an advertiser’s claims of odor control for its cat litter.
  • Defended a food manufacturer involving the calculation of nutritional information, as well as in a companion court case, which involved the complicated interplay between the NAD and court rules.


LANHAM ACT ADVERTISING LITIGATION

  • Representing a software manufacturer in a Lanham Act false advertising litigation challenging comparative claims in an alleged survey-based research paper commissioned by a competitor
  • Representing a consumer product manufacturer in a Lanham Act false advertising litigation challenging false and misleading animation depicting the operation of client’s product
  • Represented a major national jewelry retailer as the plaintiff in a Lanham Act false advertising case over a competitor’s deceptive marketing of the quality of its diamond jewelry.
  • Defended a shower head manufacturer against a competitor’s allegations that it misstated its water flow rates and its compliance with environmental regulations.
  • Represented a major automobile company in the U.S. Court of Appeals for the First Circuit in a dispute with a dealer over internet advertising policies and practices.
  • Challenged a pet food maker’s claims that its product contained no poultry by-products.
  • Defended a Lanham Act advertising case for a major beverage company accused of misleadingly promoting the amount of a particular juice in its blended juice product. 
  • Defended a generic dietary supplement manufacturer sued by a competitor for alleging comparing its active ingredient content with a branded product. 
  • Litigated a two-way injunction battle between rival makers of smoking cessation aids, each contending that the other falsely advertised its product’s efficacy.


GOVERNMENT INVESTIGATIONS AND ENFORCEMENT

  • Defended against FTC allegations that a major house paint manufacturer understated the volatile organic compounds (VOCs) emitted by its interior house paints.
  • Represented a dietary supplement marketer in an FTC investigation of the purchase of allegedly false product reviews on a major marketplace website.
  • Advised a maker of automotive engine treatments in an FTC administrative proceeding alleging that it overstated claims for prolonging engine life and improving performance.
  • Worked with a company in an FTC investigation focused on the claims that a nutritional supplement was tailored to the consumers’ DNA.
  • Advised parties before the FDA with respect to labeling and advertising inquiries involving our clients or our clients’ competitors.
  • Responded to state attorney general allegations that a dietary supplement maker misrepresented the herbal ingredients that it contained.
  • Represented a private university in an inquiry into marketing claims borough by the Massachusetts Attorney General and U.S. Senate. 
  • Advised clients before the Attorneys General of New York and Massachusetts with respect to allegations of unfair and deceptive trade practices, false advertising and unfair competition.