American Society for Pharmacy Law Track

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March 19, 2019

DECEPTIVE ADVERTISING
Washington State Court of Appeals upholds application of FTC guidelines in evaluating alleged deceptive claims for 5-Hour ENERGY® under Washington’s Consumer Protection Act
Under federal law, the Federal Trade Commission oversees advertising of OTC products and nutritional products subject to the Dietary Supplements and Health Education Act (DSHEA). For the FTC to show that an advertising claim is deceptive under FTCA §5, according to the opinion in the instant case, it “must establish that the advertisement (1) conveys a representation through either express or implied claims; (2) that the representation is likely to mislead consumers; and (*3) that the misleading representation is material.”  It is not necessary to prove either consumer reliance on the claim(s) or that consumers were injured.

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