Advertising and Marketing

Commercial
Commercial

We clear advertising claims, influencer programs, promotions, and text and email campaigns before launch, and we bring or defend Lanham Act false advertising suits, NAD challenges, FTC inquiries, and TCPA class actions when a campaign draws fire.

A single product claim can draw an FTC inquiry, a competitor's Lanham Act suit, and a consumer class action at the same time. Advertising law reaches every claim you make about your product or a competitor's, every endorsement and influencer post, every sweepstakes and contest, and every call, text, and email you send to market it. We help marketing teams launch campaigns that will hold up, with substantiation in the file and disclosures where consumers will actually see them, and we represent companies when a regulator, a competitor, or a plaintiff's firm challenges what they said.

The Rules That Apply

Section 5 of the FTC Act prohibits unfair or deceptive acts or practices, and the FTC requires a reasonable basis for objective claims before they run, with competent and reliable scientific evidence for health and safety claims. The FTC's Endorsement Guides, 16 C.F.R. Part 255, require clear disclosure of material connections between brands and the people who promote them, and the FTC's rule on consumer reviews and testimonials bans fake and purchased reviews, with civil penalties for knowing violations. Section 43(a) of the Lanham Act gives competitors a private claim for false or misleading statements of fact in commercial advertising. State UDAP statutes, such as the Tennessee Consumer Protection Act and California's Unfair Competition and False Advertising Laws, add consumer and attorney general enforcement.

Promotions, Calls, And Email

Sweepstakes and contests are lawful when they remove one element of an illegal lottery: prize, chance, or consideration. That usually means a free alternative method of entry and official rules that state eligibility, odds, prize values, and dates. New York and Florida require registration and bonding for games of chance with total prizes over $5,000. The Telephone Consumer Protection Act requires prior express written consent for telemarketing calls and texts made with an autodialer or an artificial or prerecorded voice, and it carries statutory damages of $500 per violation, up to $1,500 if willful. CAN-SPAM requires accurate header information, a valid physical postal address, and an opt-out mechanism honored within ten business days.

Clearing Campaigns Before Launch

We review advertising copy, packaging, landing pages, and comparative claims against the substantiation you actually have, and we tell you which claims need testing, softening, or qualification. We build influencer agreements and posting guidelines that require proper disclosures and give you the right to remove noncompliant content. We draft official rules for sweepstakes and contests and handle state registrations. For SMS and calling programs, we review consent language, opt-out handling, and lead vendor contracts, and for email we check sender identification and suppression lists. Where your claims rest on technology, such as AI features, security, or performance benchmarks, our engineering background helps us test the claim against how the product really works.

Challenges, Inquiries, And Lawsuits

When a competitor's ads mislead buyers, we can challenge them before the National Advertising Division of BBB National Programs or in federal court under the Lanham Act, where the Supreme Court's Lexmark decision requires an injury to commercial interests in reputation or sales. When your company is the target, we respond to NAD challenges, FTC civil investigative demands, state attorney general inquiries, and cease-and-desist letters. We defend Lanham Act suits and consumer class actions under state UDAP laws and the TCPA, where early motions on consent, standing, and class certification often decide the case. These disputes are handled with our Litigation practice, so the same team carries the matter from the first letter through trial.

Common Mistakes To Avoid

The most common problem is running a claim first and looking for support afterward. Keep substantiation files for every objective claim at the time it runs. Do not rely on a hashtag buried among twenty others or a disclosure hidden behind a 'more' link; the FTC expects disclosures to be clear and conspicuous. Do not assume a lead vendor's consent records will hold up, and get indemnities and audit rights in those contracts. Make sure 'free' really means free, and that 'Made in USA' claims meet the FTC's standard that all or virtually all of the product is made here. Finally, update claims when the product changes, because a claim that was true last year can be false today.

Frequently asked questions

Yes. The FTC requires a reasonable basis for objective claims at the time you make them. For claims that a product outperforms a competitor or is clinically proven, that usually means testing or studies that support the specific claim as consumers would understand it. Opinion and obvious puffery, such as calling your coffee the best in town, generally does not need substantiation.

Under the FTC's Endorsement Guides, an influencer must clearly disclose any material connection to the brand, including payment, free products, commissions, or a family or employment relationship. The disclosure must be easy to notice and understand, such as '#ad' at the start of a caption or a spoken disclosure in a video. Brands can be held responsible for influencers' undisclosed posts, so monitoring matters.

Yes, under Section 43(a) of the Lanham Act, if the competitor made a false or misleading statement of fact in commercial advertising that is likely to deceive and that injures your sales or reputation. Remedies include injunctions, the defendant's profits, damages, and in exceptional cases attorney's fees. An NAD challenge is a faster and less expensive alternative for many disputes.

Generally no. A promotion that combines a prize, chance, and a required payment is an illegal lottery in most states. Sweepstakes offer a free alternative method of entry with equal odds of winning, and contests decided by skill follow their own rules. New York and Florida add registration and bonding requirements when total prizes exceed $5,000.

For marketing texts sent with an autodialer, the TCPA requires prior express written consent that identifies your company and the number being texted. You must honor opt-outs, observe calling-time limits, and screen telemarketing against the National Do Not Call Registry. Statutory damages of $500 to $1,500 per message make class actions common, so keeping clean consent records is the best defense.

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