Overview
Ropes & Gray’s integrated consumer protection and advertising practice has a long history representing companies in commercial disputes and government investigations concerning advertising practices. We routinely counsel our clients on a diverse array of advertising and promotional issues in an effort to avoid problems before they emerge, with a particular focus on emerging advertising issues associated with social media.
- Our multidisciplinary team provides the highest-quality legal representation relating to consumer protection and advertising encompassing:
- Federal Trade Commission (FTC) investigations, lawsuits, and counseling
- Disputes before the National Advertising Division of the Better Business Bureau (NAD) – initiating or defending
- Lanham Act advertising litigation
- Consumer class action defense
- State attorney general (AG) investigations/litigation for alleged unfair or deceptive acts or practices
- Privacy and data security policies and disclosures
- Advertising and promotion of FDA-regulated products, including emerging First Amendment jurisprudence
- Due diligence associated with advertising and promotional practices
Our attorneys have decades of experience advising companies across a diverse range of industries and platforms on the development and implementation of policies intended to ensure compliant marketing and advertising practices while concurrently enabling our clients to compete effectively in the marketplace. In some cases, we advise clients on proactively attacking competitors’ non-compliant marketing practices.
Ropes & Gray is also a leading advocate for the protection of commercial speech under the First Amendment. We represent a coalition of pharmaceutical, biotech, and medical device companies regarding cutting-edge commercial speech and First Amendment issues— seeking to achieve clarity regarding FDA’s rules governing off-label promotional claims.
Our advertising litigation practice encompasses all manners of disputes, including inter-competitor controversies and consumer class actions where the issues may involve, among other things, the “literal falsity” of advertising claims, “implied falsity,” comparative advertising, the adequacy of claim substantiation, the use of “natural” and “made in USA” claims, and discount pricing practices. We also routinely work with marketing experts to develop legally appropriate copy-tests in order to assess consumer interpretation of ambiguous claims.
Experience
Ropes & Gray has handled every type of advertising-related matter, from off-label promotion issues and compliance to defending false advertising claims. Examples of our advertising representation include:
- Successfully defended many companies in FTC investigations and NAD challenges, and successfully initiated NAD challenges against competitors.
- Routinely file “trade complaints” with the FTC on behalf of clients in an effort to generate enforcement against competitors.
- Representing companies in response to state attorney general investigations relating to product promotion.
- Advising companies on the development and use of mobile medical applications, message boards and other social media platforms.
- Representing companies in false advertising Lanham Act litigation.
- Representing companies in consumer class action defense.
- Serving as external legal counsel on grant review and promotional review committees for major multinational companies.
- Successfully defending multiple companies in alleged claims of off-label promotion and marketing violations involving various products.
- Successfully represented a large national retailer subject to FTC investigation for alleged failure to comply with a consumer protection statute, resulting in a public closing letter.
- Serving as counsel for Gillette in a series of Lanham Act false advertising suits against rival Schick in what became known as the “razor wars.”
- Represented Gillette in consumer class-action litigation challenging certain aspects of its advertising of the M3Power razor.
- Routinely conduct due diligence on advertising-related compliance.
