Advertising Law

Ryley Carlock & Applewhite attorneys help clients navigate complex federal and state laws and regulations relating to advertising and marketing. In the U.S., the promotion of nearly all consumer products and services—in all media and channels--is regulated by the Federal Trade Commission (FTC). Each state also has its own False Advertising regulations, usually under the heading of Business Codes; and more recently, state Attorney Generals have been extremely active in prosecuting false, deceptive, and unsupported advertising. Beyond advertising (FTC) law, we combine expertise in intellectual property, corporate, litigation, and food and drug (FDA) law to assist our clients with full-service strategies and solutions.

Overview of Services
We work with clients in a wide array of various industries. We also represent marketing consultants and service providers, advertising groups, as well as marketing and sales trade associations. Our goal is to help you  reduce your regulatory enforcement and liability risk throughout a service or product's life cycle, while simultaneously protecting your intellectual property—thereby building and preserving the value of your brand. Our services include:

  • Helping to develop accurate and well-supported advertising claims
  • Conducting detailed regulatory review of promotional websites
  • Assessing FREE offers, discounts and special offers
  • Providing full trademark and copyright services, for marks, slogans, logos, and brochures
  • Assisting with and screening and monitoring social media promotions
  • Drafting and negotiating various types of contracts, including:  Non-Disclosure Agreements (NDAs), Independent Consultant Contracts, Licensing Agreements, Manufacturing Agreements, and Distribution Agreements. 

Regulatory Compliance with FTC Law
The advertising law practice area of Ryley Carlock & Applewhite advises clients on all types of compliance for the following aspects of marketing:

  • Assuring that all advertising claims are true, accurate, and not misleading or deceptive
  • Qualifying certain remaining misleading or deceptive claims, by crafting disclaimers and disclosures of various sorts—which must be clear and prominent
  • Analyzing social media promotional programs and materials
  • Compiling and assessing your factual and/or scientific support to "substantiate" each claim made (the company's Substantiation Files)
  • Reviewing environmental or "green" claims—for recycling, sustainability, etc. in manufacturing and packaging
  • Distinguishing between allowed vs. disallowed claims for a particular product (e.g., herbal supplements)
  • Reviewing comparative claims—contrasting your service with a competitor's
  • Analyzing contest rules (where the contest or sweepstakes is used for promotion)
  • Drafting "corrective advertising" (if forced to make amendments to an ad based on a settlement or judgment)

Promotional materials are conveyed via many channels and media—all of which are covered by our attorneys:

  • Website content
  • Consumer testimonials
  • Expert endorsements, including celebrity endorsements
  • Social media advertising, including blogs, Facebook, and Twitter
  • Telemarketing and "Robocalls"; and the FTC's Do Not Call List
  • Print ads, brochures, and billboards
  • Radio and TV spots
  • Infomercials and Scientific Reports used for marketing  
  • Exhibit booth materials at trade shows and conferences

Litigation—Defending Your Promotions and Advertising
We counsel our clients to be in full compliance with federal and state regulations and guidelines, but when our clients' competitors run afoul of the laws on advertising and fair business practices, we work collaboratively with our litigation group on all adversarial actions including cease and desist letters, negotiated settlements, and jury trials. Our award-winning litigators provide negotiation and trial expertise for a myriad of commercial and contract disputes, trade secret and trademark infringement cases, and product liability suits.

We also vigorously defend our clients in the face of various types of investigations and complaints:

  • FTC Investigations
  • FTC Consent Decrees
  • Lanham Act cases (re. false advertising allegations)
  • Trademark and Patent infringement cases
  • State Attorney General Complaints, usually for false or unsupported advertising
  • State codes on Unfair Business Practices, e.g., the California Lemon Law
  • Complaints from the Better Business Bureau, especially the National Advertising Division (NAD)

Protecting Your Intellectual Property
Closely related to our counsel on advertising law and its disputes is the firm's IP expertise—involving advice on best practices in branding, trademarks, service marks and advertising slogans, copyright of websites and brochures, and protection of other intellectual property, such as images and photographs. Moreover, working with our litigation group, we have helped our clients prevail in many patent, trademark and copyright infringement cases.

Our overall goal is to help our clients--whether large corporations, mid-sized businesses, or small start-ups--achieve their branding, marketing, and financial objectives in the face of complex state, national, and global regulatory structures and strictures.