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Category: First Amendment

First Circuit Rejects Boundless Consumer-Protection Liability for “Pure Omissions”

Increasingly, consumers base their purchase decisions on facts about a company or its product that have nothing to do with the performance or quality of the product itself.  For example, does the manufacturer treat its workforce fairly?  Is it a responsible steward of the environment?  What are its stances on social issues like abortion or LGBTQ rights?  To which parties or candidates does it (or its officers) donate?  All of these facts—and countless others—are “material” to many consumers in the sense that they affect (or even dictate) purchase decisions.  Indeed, in recent years, ethical, moral, and political concerns like these have led to countless instances of boycotts and other forms of consumer speech—a welcome sign of a healthy body politic and liberal democracy.

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Eighth Circuit Serves Another Round of First Amendment Protection for Alcohol Advertising

Food and beverage advertising, like other forms of speech, is usually entitled to First Amendment protection – even if it may not always enjoy the same caliber of protection as, for example, journalism or political speech.  See, e.g., Sorrell v. IMS Health, Inc., 564 U.S. 552, 557 (2011) (“Speech in aid of pharmaceutical marketing . . . is a form of expression protected by the Free Speech Clause of the First Amendment.”)

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Misbranded Editors Present Webinar On “Hot Topics in Consumer False Advertising Litigation”

Last month, Misbranded co-editors Josh Kipnees, Jonah Knobler, and Jane Metcalf presented a live-streamed webinar via Bloomberg Law titled “Hot Topics in Consumer False Advertising Litigation.”  The free hour-long webinar, now available on demand, covers the following subjects, some of which should be familiar to regular readers of this blog:

  • “Natural” / “no artificial ingredients” claims

  • “No preservatives” claims

  • Ingredient claims (“made with [X]”)

  • Geographic origin claims (e.g., “Made in the USA”)

  • Slack-fill claims

  • Claims involving nondisclosure of morally troubling/offensive facts

  • What’s next in consumer false advertising litigation?

We encourage you to check it out (and obtain some CLE credit in the process).

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Compelled Product Disclosures After NIFLA – First Impressions

This is an exciting time for manufacturers on guard against compelled disclosures in their product labeling or advertising.  Late last June, the Supreme Court decided  National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”), an abortion case with potentially far-reaching effects on the law of compelled commercial speech more generally.  However, as lower courts begin to interpret and apply NIFLA in the context of product disclosures, major uncertainties remain.

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