Pre-Conference Workshop A: Advertising Claims 101 – The Building Blocks of a Successfully Substantiated Advertising Campaign

Jan 30, 2019 2:00pm - 5:00pm

Speakers

Thomas Jirgal
Partner
Loeb &Loeb (Chicago, IL)

Rick Mann
Partner
Keller and Heckman LLP (Washington, D.C.)

Day 1 - Thursday, January 31, 2019

7:00
Registration and Continental Breakfast
8:00
Co-Chair’s Opening Remarks
8:15
2018: The Year in Review – Understanding How Key Legal Developments and Emerging Trends in the World of Advertising Claims Substantiation Will Impact your Business Practices
8:45
Evaluating the Impact and Evolution of Influencers, Native Advertisers, and Social Media on the Claims Substantiation Landscape
9:45
Examining International Standards in Claims Substantiation
10:45
Morning Refreshment Break
11:00
The Progression of Puffery and Its Evolving Threat to Advertising Claims Substantiation
12:00
Networking Luncheon
1:15
Exploring the Different Obligations and Related Risks of Manufacturers and Retailers in Substantiating Claims
2:15
“Batteries Not Included” – Substantiating Claims in an Advertisement Geared for Children
3:15
Afternoon Refreshment Break
3:30
Fireside Chat with the FTC and the NAD
4:30
Proffers of Proof in Competitive Advertising and Pricing Claims
5:30
Conference Concludes for Day 1

Day 2 - Friday, February 1, 2019

7:00
Continental Breakfast
8:00
Co-Chair’s Opening Remarks and Recap of Day 1
8:15
Implementing Successful Strategies for the Substantiation of Environmental Claims
9:15
Examining Best Practices to Defend Against Class Actions in the Realm of Claim Substantiation
10:00
Morning Refreshment Break
10:15
Properly Supporting Sensory Perception and Consumer Preference Claims
11:15
Developing Claims Strategies for Up and Coming Products
12:15
Networking Luncheon for Workshop B Attendees Only

Post-Conference Workshop B: Master Class on Substantiating Claims on FDA Regulated Consumer Products – Proper Steps for Ensuring Claims on Food Products, Dietary Supplements, and Cosmetics

Feb 1, 2019 1:30pm - 4:30pm

Speakers

Katie Bond
Partner
Amin Talati Upadhye LLP (Washington, D.C.)

Kristen Klesh
Associate
Venable LLP (Washington, D.C.)

Mark Levine
Associate General Counsel
RB Health (Parsippany, NJ)

Day 1 - Thursday, January 31, 2019

7:00
Registration and Continental Breakfast
8:00
Co-Chair’s Opening Remarks

Limor Robinson Mann
Chief Oral Care Marketing Counsel, Global
Colgate-Palmolive (New York, NY)

Svetlana Walker
Chief Advertising Counsel and Director
The Clorox Company (Oakland, CA)

8:15
2018: The Year in Review – Understanding How Key Legal Developments and Emerging Trends in the World of Advertising Claims Substantiation Will Impact your Business Practices

Limor Robinson Mann
Chief Oral Care Marketing Counsel, Global
Colgate-Palmolive (New York, NY)

Svetlana Walker
Chief Advertising Counsel and Director
The Clorox Company (Oakland, CA)

During this session, our co-chairs will lead a discussion on the challenges and controversies related to advertising claims substantiation in 2018. They will provide an overview of the trends, policies, and procedures impacting the heart of advertising in the past year, as well as forecast for what 2019 will bring.

Points of discussion will include:

  • Exploring cases, actions, and matters of note impacting advertising and related claims in 2018
  • Reviewing federal and state activity affecting advertising claims substantiation
  • Predicting agency policies and initiatives that may influence claims substantiation as we enter 2019
  • Analyzing industry trends and initiatives in the claims substantiation sphere

8:45
Evaluating the Impact and Evolution of Influencers, Native Advertisers, and Social Media on the Claims Substantiation Landscape

Susan Duarte
Reston, VA
Sprint (Washington, D.C.)

Paul W. Garrity
Partner
Sheppard Mullin Richter & Hampton LLP (New York, NY)

Mikhia E. Hawkins
Senior Counsel
Viacom (New York, NY)

Gonzalo Mon
Partner
Kelley Drye & Warren LLP (Washington, D.C.)

  • Exploring the evolving role of influencers, native advertising, and social media in advertising claims
  • Understanding how the rules for claims substantiation differ for social media as opposed to traditional methods
  • Examining how social media and its progeny are becoming more mainstream in advertising
    • Weighing the risks and benefits that this poses to claims practice
  • Ensuring authenticity in editorial content
  • Effectively utilizing disclaimers to avoid allegations of false claims in paid content
  • Establishing contractual obligations and protocols for influencers, bloggers, and native advertisers
    • Incorporating the Garvey standard
    • Addressing liability for unsubstantiated claims and parameters for what can and cannot be said about a product
    • Monitoring an influencer’s claims
  • Evaluating a network’s liability and responsibility for its signed talent acting as an influencer
  • Implementing best practices for monitoring social media advertisements throughout the products lifespan
    • Regulating misleading information on a website

9:45
Examining International Standards in Claims Substantiation

Catherine Bate
Partner
Miller Thomson LLP (Toronto, Ontario)

Jeffrey Edelstein
Partner
Manatt, Phelps & Phillips LLP (New York, NY)

Aaron Reuter
Counsel, Global Brands & Marketing
Hilton (McLean, VA)

With advertising claims now reaching anywhere in the world thanks to the internet and other means of communication, it is critical for companies to keep a global watch on claims substantiation. This session will provide perspective on the proper steps for multinational companies to ensure the substantiation of international claims.

  • Examining the differences in substantiating claims made in the U.S. vs. other countries
  • Developing strategies to ensure the standing of a global claim
  • Exploring the effects of GDPR on substantiating a multinational advertisement
  • Overcoming challenges that occur when presenting multinational claims
  • Reviewing the relationship between Canada and the United States in substantiating crossborder claims
  • Following proper steps to challenge a claim on a multinational level

10:45
Morning Refreshment Break
11:00
The Progression of Puffery and Its Evolving Threat to Advertising Claims Substantiation

Kenneth Blackburn
Associate General Counsel
Procter and Gamble (Cincinnati, Ohio)

Adam M. Ekonomon
Vice President and Associate General Counsel
JM Smuckers (Orrville, Ohio)

Holly Melton
Partner
Crowell & Moring LLP (New York, NY)

Puffery has been in existence from the inception of advertising. However, the line between puffery and an actual claim has become more blurred than ever before. This session will help you find clarity in this current state of murkiness. Points of discussion will include:

  • Exploring how puffery has evolved and why it is becoming more difficult to identify
  • Reviewing unique instances of puffery in recent advertisements
  • Looking at uses of consumer claims and social media as puffery
  • Discovering where the current line between puffery and a claim is drawn
  • Assessing the surrounding factors/context of an advertisement when determining if puffery is being utilized
  • Establishing best practices for ensuring objectivity
  • Reviewing recent challenges to advertisements described as puffery
  • Examining the need for substantiation if the puffery defense fails

12:00
Networking Luncheon
1:15
Exploring the Different Obligations and Related Risks of Manufacturers and Retailers in Substantiating Claims

Thomas Cohn
Director and Senior Counsel, Sales & Marketing
AVON (New York, NY)

Ryan Garcia
Managing Legal Director
Dell (Austin, TX)

Anne V. Maher
Partner
Kleinfeld Kaplan & Becker LLP (Washington, D.C.)

  • Examining the responsibility and liability of the retailer and manufacturer in regard to product claims
  • Exploring the relationship of the regulator, retailer, and manufacturer to a product’s claim
  • What enforcement actions can regulators take against a retailer for a manufacturer’s unsubstantiated claim on a product?
  • Is the retailer responsible for monitoring the claim substantiation of a product?
  • Establishing best practices for a retailer to contract with a manufacturer relative to claims substantiation
    • What insurance and assurances must be in the contract to indemnify the vendor from enforcement action?
  • Implementing protocols for when a manufacturer provides a retailer with a message regarding a product’s claims
    • Ensuring the retailer does not make an unsubstantiated claim
    • Monitoring the retailer’s ads for misleading claims
  • Incorporating rules of engagement for retailers and manufacturers to work together to substantiate claims

2:15
“Batteries Not Included” – Substantiating Claims in an Advertisement Geared for Children

Allison Fitzpatrick
Partner
Davis & Gilbert LLP (New York, NY)

Tina Poturica-O’Neill
Senior Legal Associate
Children’s Advertising Review Unit (New York, NY)

  • Exploring CARU’s recent agenda and priorities relative to claim substantiation of children’s advertisements
  • Understanding that the parent is the focus of the ad and related claims as opposed to the child
  • Establishing proper product placement in an ad, and devising a claim’s messaging to concentrate on the product for purchase as opposed to the associated give-away
  • Utilizing the necessary disclosures when communicating with a child audience
  • Properly demonstrating a product to a child for the purposes of claims substantiation
    • Clearly displaying reality vs. fantasy
  • Ensuring endorsers meet the necessary substation requirements for advertising to a child
  • Discussing the potential penalties for misrepresenting a product to a child

3:15
Afternoon Refreshment Break
3:30
Fireside Chat with the FTC and the NAD

Christopher Y. Miller
Attorney
Federal Trade Commission, Northeast Region (New York, NY)

La Toya Sutton
Staff Attorney
National Advertising Division of the Council of Better Business Bureaus (New York, NY)

Moderator

John D. Graubert
Partner
Covington & Burling LLP (Washington, D.C.)

ACI is pleased to offer an in-depth discussion with the FTC and the NAD focused on the latest proceedings, including enforcement actions and hearings, affecting the advertising claim substantiation arena. Learn from Christopher Y. Miller and La Toya Sutton as they review key happenings in 2018, as well as provide perspectives on upcoming changes that will shape industry for 2019 and beyond.

4:30
Proffers of Proof in Competitive Advertising and Pricing Claims

Andrew B. Lustigman
Partner
Olshan Frome Wolosky LLP (New York, NY)

Scott Shaffer
Partner
Olshan Frome Wolosky LLP (New York, NY)

Howard Smith
Senior Staff Attorney, Direct Selling Self-Regulatory Council
Council of Better Business Bureaus, Inc. (New York, NY)

  • Exploring best practices and legal challenges in substantiating a competitive claim
  • Uncovering Proper ways to present comparative claims
    • What evidence and tests are necessary to prove a parity claim?
    • What evidence and tests are necessary to prove a superiority claim?
  • Discussing the increased usage of “Number One Brand” and “Up To” claims
  • Avoiding product line claims for the purposes of claim substantiation in competitive advertising
  • Reviewing the necessary requirements to substantiate pricing claims and discounts
  • Examining claims surrounding MSRP and applicable taxes and fees
  • Ensuring the utilization of proper pricing studies

5:30
Conference Concludes for Day 1

Day 2 - Friday, February 1, 2019

7:00
Continental Breakfast
8:00
Co-Chair’s Opening Remarks and Recap of Day 1
8:15
Implementing Successful Strategies for the Substantiation of Environmental Claims

Georgia C. Ravitz
Partner
Arent Fox LLP (Washington, D.C.)

Ronald Y. Rothstein
Partner
Winston and Strawn LLP (Chicago, IL)

  • Examining the key terms used by companies when substantiating environmental claims for a product
  • Reviewing federal and state standards for environmental claim substantiation
    • What disclosures must be on the label?
    • Claims effecting health and safety
  • Determining the evidence that is necessary to substantiate an environmental claim
  • Analyzing the requirements listed in the FTC’s “Green Guide” that a company must follow to properly substantiate environmental claims
  • Distinguishing the differences between a company’s environmental claims vs corporate commitment
  • Exploring the process to challenge environmental claims

9:15
Examining Best Practices to Defend Against Class Actions in the Realm of Claim Substantiation

E. Alex Beroukhim
Partner
Arnold and Porter LLP (Los Angeles, CA)

Thomas J. Cunningham
Partner
Locke Lorde LLP (West Palm Beach, FL)

This session provides perspective on the recent decisions from class action cases focused on advertising claims substantiation in 2018. Speakers will discuss best practices for building a strong defense for the substantiation of a claim, including presenting the necessary evidence to support a claim, properly incorporating witnesses, and successful settlement strategies.

10:00
Morning Refreshment Break
10:15
Properly Supporting Sensory Perception and Consumer Preference Claims

Jeffrey Brown
Partner
Michael Best & Friedrich LLP (Chicago, IL)

John Feldman
Partner
Reed Smith LLP (Washington, D.C.)

Pairin Hongsoongnern
Manager R&D, Claims and Product Experience
SC Johnson (Racine, WI)

  • Assessing the potential usages of sensory perception relative to consumer preference in making a claim
  • Identifying the testing necessary to substantiate a sensory perception and consumer preference claim
  • Examining the science used to substantiate a sensory perception claim
  • Determining if all test results of a study should be made public rather than a select few for presenting the evidence necessary to properly substantiate a claim
  • Ensuring the proper use of an overall perspective to substantiate an advertising claim
  • Reviewing the effects of consumer reviews indicating preference on websites such as Facebook, Google, and Yelp on advertising claim substantiation

11:15
Developing Claims Strategies for Up and Coming Products

Michael Schaper
Partner
Debevoise & Plimpton LLP (New York, NY)

Amy Mudge
Partner
Baker Hostetler LLP (Washington, D.C.)

  • Determining the proper usage of dramatizations and simulations for yet to be released products
    • What disclosures are necessary in these ads?
  • Applying the correct language for distinguishing dramatizations and simulations from actual testing within an advertisement
    • Objective vs subjective
  • Examining the differences in substantiating a demo and a test
    • Internal methods for testing an upcoming product to substantiate a claim
  • Avoiding claims which contain unrealistic expectations that cannot be substantiated
  • Reviewing the effects of trade secrets on claim substantiation
  • Exploring the liabilities of a company should a product not be able to live up to advanced claims
  • How will future changes to the advertising industry change the requirements of claim substantiation?

12:15
Networking Luncheon for Workshop B Attendees Only

Pre-Conference Workshop A: Advertising Claims 101 – The Building Blocks of a Successfully Substantiated Advertising Campaign

Jan 30, 2019 2:00pm - 5:00pm

$600

Speakers

Thomas Jirgal
Partner
Loeb &Loeb (Chicago, IL)

Rick Mann
Partner
Keller and Heckman LLP (Washington, D.C.)

What is it about?

(Registration Begins at 1:00 PM)

The session will provide a comprehensive overview of the content and terminology used in the advertising of products and services, and the related claims substantiation requirements. Geared for advertising professionals new to the industry or those interested in a refresher course, this pre-conference workshop will present the introductory materials necessary to prepare for the main conference. Topics of discussion will include:

  • Exploring the advertising landscape
  • Defining key advertising terms
  • Differentiating between different types of claims
    • Expressed vs. implied
  • What evidence is necessary to support a claim?
  • What role do statistics play in the process?
  • Examining testing requirements used to substantiate claims
  • Discussing the ASTM language on substantiation
  • Once a claim has been substantiated, how may it be used?
  • How do the various advertising mediums differ when it comes to substantiating claims?
  • How do claim requirements differ by type of industry?
    • e.g., FDA-regulated industries vs. non-FDA regulated industries
  • Exploring the roles of the different teams involved in the advertising claims substantiation process
  • Identifying regulatory bodies and watchdog groups that monitor advertising
    • FTC
    • State and Attorneys General Offices
    • NAD/CARU
  • Examining the creation of an advertising campaign
    • How does the process change for a new product vs. an established product
    • Ensuring the method matches the message
    • Key language to use and avoid in an advertisement
    • Successfully displaying a stated goal
  • Examining the use of a trademark as a claim
  • Avoiding the use of misleading information

Post-Conference Workshop B: Master Class on Substantiating Claims on FDA Regulated Consumer Products – Proper Steps for Ensuring Claims on Food Products, Dietary Supplements, and Cosmetics

Feb 1, 2019 1:30pm - 4:30pm

$600

Speakers

Katie Bond
Partner
Amin Talati Upadhye LLP (Washington, D.C.)

Kristen Klesh
Associate
Venable LLP (Washington, D.C.)

Mark Levine
Associate General Counsel
RB Health (Parsippany, NJ)

What is it about?

(Registration Begins at 1:00 PM)

This interactive master class will explore the particular requirements and nuances of claim substantiation for non-pharmaceutical FDA-regulated consumer goods such as food, dietary supplements and cosmetics.

The Master Class instructors will lead you through the complexities of inter-agency policies and procedures governing what claims you can safely make as well as those you cannot. Points of discussion will include:

  • Reviewing the advertising guidelines published by the FDA and FTC
    • What is the difference between a health claim and a qualifying health claim?
    • Dietary guidance
    • Structure and function claims
  • Discussing the relationship between the FDA and FTC relative to claims made of these products
  • Clarifying the FDA and FTC’s jurisdiction over influencers
  • Determining the proper steps when substantiating the claims of a product relying on ingredients such as plants and minerals
  • Exploring terms such as “all-natural”, “100% real ingredients”, and “wholesome”
    • Are these terms puffery?
    • What testing is necessary to substantiate these claim for a food or cosmetic product?
    • Expected guidance on the term “all-natural”
  • Identifying the types of claims that exist for weight loss products, probiotics, joint supplements, and other nutritional supplements and the substantiation required for them
  • Analyzing the substantiation utilized for recent advertising claims on anti-aging and skin care products
  • Assessing available enforcement actions for unsubstantiated claims of FDA regulated products
    • Warning letters
    • How can companies remedy these issues?
    • Discussing recent enforcement action
  • Examining the recent challenges made by companies and consumers on claims made for these types of products
    • FTC
    • NAD challenges
    • Class actions