Andre Hanson (US)

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Executive Order to breathe new life into Made-in-America rules

By Andre Hanson (US) and Saul Perloff (US) on January 26, 2021 Posted in Advertising, General

Federal acquisition law and regulations often require government agencies to give purchasing preference to domestic suppliers. These preferences—some of which have remained unchanged since the Eisenhower Administration—have not always been implemented consistently or effectively. That uncertain landscape may be about to change. On Monday, January 25, 2021, the Biden Administration issued an Executive Order setting … Continue reading

Federal Common Law Governs Availability of Statutory Restitution in Diversity Suit

By Andre Hanson (US), Leaf Dilts McGregor (US) and Saul Perloff (US) on July 8, 2020 Posted in Advertising

The Ninth Circuit held that, irrespective of a state’s own standards for equitable relief, a federal court exercising diversity jurisdiction is bound by federal common law requirements for granting the equitable remedy of restitution, including the mandate that such relief is unavailable unless there is no adequate remedy at law. Sonner v. Premier Nutrition Corp., … Continue reading

(Mis)Interpretation of Standard Did Not Support False Advertising Liability

By Andre Hanson (US), Leaf Dilts McGregor (US) and Saul Perloff (US) on July 6, 2020 Posted in Advertising

The Eleventh Circuit just ruled that a standard-setting-body’s interpretation of its own standards is an opinion that cannot support Lanham Act false advertising liability. Warren Technology, Inc. v. UL LLC, __ F.3d __, No. 18-14976, 2020 WL 3406585 (11th Cir. Jun. 22, 2020). Plaintiff Warren Technology and defendant Tutco, LLC competed in the field of … Continue reading

Outlaw Labs Can’t Charge Ahead In Suit Against Rhino Sellers

By Andre Hanson (US), Leaf Dilts McGregor (US) and Saul Perloff (US) on July 1, 2020 Posted in Advertising

Another chapter in the Outlaw Laboratories litigation drama has ended with another defeat for Outlaw. In 2018 the FDA warned consumers that some “Rhino” products—supplements that compete with Outlaw’s own “male enhancement” supplements—were adulterated with the active ingredients found in prescription drugs like Viagra and Cialis. Outlaw launched a series of false advertising suits against … Continue reading

Government edicts doctrine precludes legislators from claiming copyright protection

By Felicia Boyd (US), Alicia Groos (US) and Andre Hanson (US) on April 28, 2020 Posted in Copyright

In a 5-4 decision, the United States Supreme Court held in Georgia et al v. Public.Resource.Org., Inc. (No. 18-1150) (April 27, 2020) that the state of Georgia is not entitled to copyright protection for its official annotated code. The Copyright Act grants expansive rights for “original works of authorship.” 17 U.S.C. § 102(a). Georgia claimed … Continue reading

Meaty Brand Messaging During a Crisis

By Robert Rouder (US) and Andre Hanson (US) on April 10, 2020 Posted in Advertising

Brand promotion may be seen as encompassing (at least) three distinct but overlapping modes: (i) Advertising for the moment—the message is meant to drive immediate sales; (ii) Advertising for post-sale burnishment—the message does more than sell products today, it builds the image or reputation of the brand; and (iii) Advertising for posterity—a commercial communication that … Continue reading

Mitigating Advertising Risks During the COVID-19 Crisis

By Saul Perloff (US), Andre Hanson (US), Robert Rouder (US) and Leaf Dilts McGregor (US) on March 27, 2020 Posted in Advertising

During this time of crisis, pharmaceutical and consumer product companies along with retailers are doing their best to provide the public with products to prevent and treat COVID-19. At the same time, the FTC and FDA have announced that they will be particularly vigilant in policing unscrupulous or overzealous marketers making unsubstantiated, misleading, or false … Continue reading

The Slants Win: SCOTUS rules “Disparaging” trademark provision unconstitutional

By Andrea Shannon (US), Saul Perloff (US) and Andre Hanson (US) on June 20, 2017 Posted in Trademark

On June 19, 2017, the United States Supreme Court issued a much-anticipated decision, holding that the so-called “disparagement clause” of the Lanham Act is an impermissible restriction on free speech under the First Amendment. The ruling is the culmination of years of litigation, and clears the way for Simon Shiao Tam and the Slants to … Continue reading

11th Cir. holds “skim milk” label protected by 1st Amendment

By Andre Hanson (US) and Saul Perloff (US) on April 10, 2017 Posted in Advertising

In a case with potentially significant ramifications for regulatory oversight of the labeling and advertising of foods and pharmaceuticals, the Eleventh Circuit held the First Amendment precluded the Florida Department of Agriculture’s Bureau of Dairy Industry (the “Florida Bureau”) from prohibiting a dairy company’s use of the phrase “skim milk” to describe its “all-natural” milk … Continue reading

Update: 2d Circuit denies split in Church & Dwight and Apotex rulings

By Andre Hanson (US) on December 19, 2016 Posted in Advertising

On December 2, 2016, the United States Court of Appeals for the Second Circuit denied rehearing by the Panel and rehearing en banc. On December 5, 2016, the Court withdrew its previous opinion, which was to have been published with the reporter cite 836 F.3d 153, and directed that it will be republished as an … Continue reading

Denial of CDA immunity defense not immediately appealable

By Andre Hanson (US) on December 7, 2016 Posted in Advertising

On November 1, 2016, the U.S. Court of Appeals for the Tenth Circuit ruled that the Communications Decency Act (CDA) provides immunity from liability, not from suit, precluding interlocutory appellate jurisdiction under the collateral order doctrine. General Steel Domestic Sales, L.L.C. v. Chumley, et al., Case No. 15-1293, __ F.3d __, 2016 WL 6441028. The … Continue reading

Second Circuit may address apparent Apotex/Church & Dwight split

By Andre Hanson (US), Robert Rouder (US) and Saul Perloff (US) on November 2, 2016 Posted in Advertising

In our September 28, 2016 blog post, and subsequent Law360 Article, we reported that an internal Second-Circuit split had arisen regarding the deference owed to allegedly false and misleading pharmaceutical/medical device advertising where the FDA had considered and approved similar claims for labeling. The earlier decision involved in the split, Apotex, Inc. v. Acorda Therapeutics, Inc. 823 F.3d 51 (2d … Continue reading

Intra-Circuit split should give advertisers pause

By Robert Rouder (US), Andre Hanson (US) and Saul Perloff (US) on September 28, 2016 Posted in Advertising

While advertising off-label claims for medical devices and pharmaceuticals may be like sailing into stormy waters, companies might assume that advertising their products based on FDA-vetted labeling is, if not a safe harbor, at least a reasonably sheltered cove. The recent Second Circuit decision in Church & Dwight Co. Inc., v. SPD Swiss Precision Diagnostics, … Continue reading

6th Circuit Rules Energy Drink Makers Can Take Their Shots With A Jury

By Andre Hanson (US) and Saul Perloff (US) on September 19, 2012 Posted in Trademark

Last Thursday, the Sixth Circuit resurrected a trademark infringement claim and a false advertising counterclaim involving the competing “energy shot” vitamin drinks “5-hour ENERGY™” offered by Innovation Ventures, LLC, d/b/a Living Essentials (“LE”) and “6 Hour POWER” from N.V.E., Inc. (NVE). See Sep.13, 2012 Decision. 5-Hour Energy Mark More Than Descriptive The Sixth Circuit … Continue reading