Ad Law News and Views - March 13, 2021

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Food Litigation and Regulatory Highlights – February 2021

Our monthly digest of litigation and regulatory highlights impacting the food and beverage industry.  February saw another win for industry on the vanilla front, a preemption win in California state court, and FDA continuing with COVID-19-related warning letters and foreign supplier verification enforcement.  Let’s take a look….

CFPB Rescinds ​“Abusive” Policy Statement, Signaling Broader and More Aggressive View of ​“Abusive” Authority

In a significant but unsurprising move, the CFPB announced that it was rescinding a policy statement issued in January 2020 that sought to tether the Bureau’s ​“abusive” authority to certain limiting principles.  The move signals that the Bureau is likely to interpret its authority to prevent ​“abusive acts and practices” under the Dodd-Frank Act more broadly and use that authority to initiate new enforcement against industry.

Bad Break for belVita Breakfast Biscuits

Judge Cynthia Bashant of the Southern District of California granted a plaintiff’s second bite at the apple (or rather biscuit) to certify a class of purchasers of belVita breakfast biscuits in McMorrow v. Mondelez International, Inc.  The plaintiff alleged that Mondelez falsely labeled its belVita biscuits as providing ​“NUTRITIOUS SUSTAINED ENERGY;”  ​“NUTRITIOUS STEADY ENERGY ALL MORNING;” and ​“4 HOURS OF NUTRITIOUS STEADY ENERGY.” The plaintiff contended those statements were false or misleading in violation of California and New York law because the breakfast biscuits are not nutritious, and actually contain high amounts of added sugar and can increase the risk of serious diseases, including CHD, stroke, and other morbidity.

NAD Finds That Humor Doesn’t Always Indicate Puffery

The American Association of Orthodontists ran a series of social media ads for Happy Mouth Now, a fictional teledentistry company, which showed consumers struggling with the company’s products. The ads are funny, unless you work for a non-fictional teledentistry company, in which case you’d likely choose another adjective to describe them. 

Senators Circling Antitrust Targets, But Not Yet Closing In

At a hearing of the Antitrust Subcommittee of the Senate Judiciary Committee, Chair Amy Klobuchar (D-MN) emphasized the need for broad antitrust reform. While she rallied bipartisan support to supplement antitrust budgets and encountered little opposition for helping news outlets bargain with social media, prospects for her sweeping S. 225, the Competition and Antitrust Law Enforcement Reform Act remain uncertain.

Competition Policy Gets a Top Spot in the White House

Following weeks of speculation about a potential role for Columbia Law Professor Tim Wu in the Biden Administration, the White House announced on March 5 that Wu has been named Special Assistant to the President for Technology and Competition Policy. As an official housed in the National Economic Council (“NEC”), Wu will not directly command staff within federal agencies or set the agencies’ enforcement or regulatory agendas. Instead, Wu will most likely focus on coordinating federal agencies’ efforts to identify and address competition issues. Given his history, Wu could seek to have particular influence on the Federal Communications Commission (“FCC”) and Federal Trade Commission (“FTC”) as they shape their Biden Administration agendas.

Kelley Drye’s COVID-19 Weekly Digest

Kelley Drye has been monitoring developments and providing up-to-date information about the potential legal and business implications of the coronavirus pandemic. Advisories and legal updates on COVID-19 from this week are below and can be found on our COVID-19 Resource Center on our website.

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