The verdict in a recent high profile case alleging false advertising claims is significant for the store brand industry. The case involved Perrigo Company, a producer of dietary supplements for the private label market, and Rexall Sundown, Inc. The jury upheld the practice of communicating choice to consumers through the use of a comparison statement specifically identifying a national brand
The Dilemma
In what began as an innovative way to improve advertising efficiency, online behavioral advertising has spawned “Big Brother”-type fear among watch-dog groups worried about consumer privacy. According to the advertising industry’s “Self-Regulatory Principles For Online Behavioral Advertising,” online behavioral advertising is “the collection of data from a particular computer or device regarding Web viewing behaviors over time . . . for the purpose of using such data to predict user preferences or interests to deliver advertising to that computer or device based on the preferences or interests inferred from such Web viewing behaviors.” In a recent Annenberg study, 66 percent of American adults indicated they did not want websites or networks targeting advertisements to them. Representing the other side of the spectrum, a representative of the American Association of Advertising Agencies has explained, “[M]arketers want their messages delivered to the customer most likely to buy—that is both economically efficient and completely sustainable in a consumer-driven, competitive marketplace.” The dilemma is thus presented: how to balance the privacy concerns surrounding the collection of personal information with the need to subsidize the availability of online content through effective and cost-efficient advertising. This is the dilemma that will eventually be addressed one way or another, either through continued industry self-regulation, or through actual regulation.
On March 29, 2010, FDA published a proposed rule setting forth how it would interpret the Congressionally mandated requirement that “major statements” in broadcast Director-to-Consumer (“DTC”) advertisements for prescription drugs be presented in a “clear, conspicuous and neutral manner." See proposed 21 C.F.R. § 202.1(e), 75 Fed. Reg. 15376 (March 20, 2010).
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