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Advertising Litigation and Substantiation

Skadden’s intellectual property attorneys handle truth-in-advertising and claim-substantiation disputes and counseling, primarily for nationally known businesses offering consumer products and services. We have considerable experience prosecuting and defending false/misleading advertising claims brought under Section 43(a) of the Lanham Act, as well as defending Federal Trade Commission and other regulatory investigations. Along with attorneys from other Skadden practices, we also defend consumer class actions relating to allegedly deceptive advertising and consumer marketing practices.

We frequently represent clients in advertising disputes before the National Advertising Division and the Electronic Retailing Self-Regulation Program. Our attorneys, several of whom have science degrees and pharmaceutical industry experience, often are called upon to help evaluate claim substantiation, often in the context of cosmetics product and over-the-counter drug advertising.

In dealing with claim support issues, we often review copyright, trademark and right-of-privacy/publicity issues.

Our recent advertising experience includes representing:

  • Anheuser-Busch, Inc. in several NAD investigations involving MillerCoors.
  • Aramis Inc. in a consumer class action in federal court in San Diego.
  • Clinique Laboratories, LLC in the successful defense of a consumer class action lawsuit in federal court in Connecticut challenging advertising claims for Repairwear collection antiaging products.
  • Estée Lauder Inc. in the defense of a consumer class action lawsuit filed in federal court in the E.D.N.Y. challenging advertising for Advanced Night Repair.
  • Fresh Del Monte Produce, Inc., the exclusive licensee of the DEL MONTE trademark in connection with the sale of fresh fruit, vegetables and produce, in a false advertising lawsuit in the U.S. District Court for the Southern District of New York against Del Monte Corporation challenging the packaging and labeling of preserved fruit products, as well as the defendant’s national “Fruit Undressed” advertising campaign. Fresh Del Monte prevailed in a two-week jury trial and recovered substantial damages.
  • International Trademark Association in an amicus submission to the U.S. Supreme Court regarding the appropriate standard for establishing standing to assert Lanham Act false advertising claims.
  • Jackson Hewitt in a false advertising lawsuit against H&R Block in federal district court in New York.
  • Origins Natural Resources, Inc. in the successful defense of a consumer class action lawsuit in federal court in Chicago, challenging launch advertising claims for Plantscription Anti-Aging Serum, and in a successful appeal to the NARB from an adverse NAD decision.
  • Pfizer, Inc. in two NAD challenges to promotional claims made by Bayer Corp. for nutritional supplements.
  • The Reader’s Digest in its successful defense of state law deceptive trade practices claims challenging subscription practices and advertisements.
  • Red Bull North America, Inc. in consumer class actions in federal court in New York.