Labeling & Advertising

Overview

Today’s regulatory regime demands strict attention to every aspect of product design, standards compliance, and labeling and advertising. Even the most minor misstep can draw the attention of regulators and lawyers. If you are developing a new product, improving a design, revising a current label, or directing your marketing team on what claims your social influencers can make, any sound roll-out strategy must consider legal risk management just as it would marketing and logistics.

Blank Rome advises companies of all sizes on federal and state laws related to design, labeling, and advertising for consumer products, including food and beverages, cosmetics, and supplements. Our team has comprehensive experience in all phases of development, labeling, and advertising, from reviewing companies’ quality program and copies, to helping structure advertising campaigns, to responding to litigation threats and defending false advertising claims in court.

We understand that legal requirements have to be balanced with business goals, and we empower our clients to understand and comply with complex regulations, such as the Consumer Product Safety Act (“CPSA”) and Food, Drug, and Cosmetic Act, with minimal impact to their business. We stay current with the trends of consumer false advertising lawsuits, and help our clients prevent and respond to pre-suit threats, as well as defend such claims in court in complex consumer class actions.

What Sets Us Apart

We have experience in every aspect of federal and state regulation, including food, drink, cosmetics, and supplements, giving us the breadth of knowledge to counsel your organization on every aspect of its project strategies.

Our familiarity with the CPSA, Food and Drug Administration (“FDA”) regulations, state statutes such as California’s Proposition 65, and similar laws provides the foundation for providing common-sense regulatory advice at a reasonable cost, allowing your organization to spend your resources on the strategic factors that maximize your product’s potential for success.

At Blank Rome, we know the best strategy is compliance. But in those situations when even compliance isn’t enough, we have litigated to successful conclusion several product litigation challenges and we know what works. We team with you to craft litigation and resolution strategies that work for you both as a litigant and a business.

We can come to your office and explain to your team the latest in law and regulation to keep you in front of the curve as you formulate your marketing strategies.

How We Can help

New Product Introduction

If you are a new company, or are considering adding a new product or product line, we can help start to finish!

Regulatory Labeling, and Advertising Advice

Our team has deep experience in advising companies to help navigate complex government requirements for product standards compliance, labeling, and advertising including:

Analyzing quality programs to ensure compliance with appropriate industry standards
Conducting advertising and labeling review for compliance with FDA regulations and other federal and state laws, including the Federal Fair Packaging and Labeling Act
Reviewing advertising and labeling copy and graphics to prevent litigation while effectively marketing your product
Providing advice on advertising claims based on scientific testing, consumer surveys, and expert analysis
Advising about advertising on social media, including statements by endorsers and contracting reviews for endorsements
Providing comprehensive, cost-effective regulatory advice for food and beverage start-ups

Litigation and Pre-Litigation Matters

We have extensive experience helping large and small companies respond to pre-litigation threats and litigation of all kinds, including multistate class actions. We are knowledgeable in all aspects of consumer lawsuits and bring that knowledge to bear to analyze risk and help clients resolve threats pragmatically and in line with the company’s long-term goals. Our substantive experience extends to:

Responding to pre-litigation demands relating to false advertising, unfair competition, California’s Sherman Law, product fill level, Proposition 65 claims, and all other kinds of alleged consumer deception or injuries
Analyzing litigation and providing the most effective means for resolution, either through successful dismissal or an advantageous settlement
Providing comprehensive litigation defense through all stages of class action lawsuits and trial

Competitor Actions or Government Enforcement

Our team has deep experience in advising companies on navigating complex government requirements for product labeling and advertising including:

Analyzing whether to initiate a product recall and comprehensive management of the recall process, including to mitigate the risk of follow-on claims from consumer litigants
Responding to threatened government enforcement by the Federal Trade Commission, FDA, or state bodies
Reviewing and responding to claims by competitors and threatened litigation

Key Contacts

Related Services

Related Industries

Experience

Regulatory Compliance

Provided comprehensive advice for start-up companies in the food and beverage space, including restaurants, food and beverage companies, and alcohol makers, on labeling and advertising to comply with federal, state, and local laws.
Reviewed labels for cosmetic, food, beverage, and supplement products for FDA-compliance and compliance with myriad state laws.
Reviewed websites and product marketing campaigns for compliance with state and federal laws, including FDA regulations and other retail laws.
Provided advice to cosmetic and supplement companies on drug claims and structure/function claims.
Provided advice regarding recyclability, reusability, and other environmental compliance matters.

Litigation Risk

Reviewed and creatively revised advertising, website, and social media copy, labeling, and imagery for claims that create a risk of litigation.
Advised cosmetics companies on policies and contracts related to social influencers.
Advised cosmetics companies on the basis for advertising claims, including those sourced from users and generated using scientific experts and studies.

Pre-Litigation Demands

Represented supplier to major supermarket chain responding to threatened geographical indicator class action lawsuit.
Represented international cosmetics companies in pre-litigation demands regarding allegedly harmful chemical in products.
Represented and advised multiple companies on threatened class action lawsuits related to “natural” claims, and claims relating to flavoring labeling.
Represented several food and supplement sellers in resolving threatened “slack fill” litigation.
Resolved pre-litigation lawsuit involving the veracity of product claims for a multinational cosmetics company.
Resolved threatened lawsuits against cosmetics companies alleging product liability and failure to warn.

Litigation

Successfully dismissed putative class action claim in the Central District of California relating to supplement efficacy.
Defeated complaint against over-the-counter drug makers in failure to warn lawsuit under Proposition 65, which was upheld on appeal.
Won motion dismissing false advertising complaint in the Northern District of California relating to supposedly misleading supplement label.
Served as national coordinating counsel for major, multinational chemical distributor in benzene and solvent litigation filed throughout the United States.
Advantageously resolved class action against cosmetic company related to alleged false advertising and fraud.

Government Enforcement and Competitor Actions

Advised cosmetics companies on initiating and managing FDA recalls of cosmetics relating to safety concerns or labeling errors.
Represented drug manufacturer and provided pre-litigation advice on investigation, regulatory reporting, and communications following report of death from use of prescription drug.
Prosecuted and responded to Lanham Act claims by market competitors related to product labeling and marketing claims.
Advised client in managing recalls of consumer products, including motorcycle helmets, office chairs, and defective linens, and comprehensive management of regulatory filings and public messaging.