This course will examine the current state of regulation and litigation surrounding advertising—especially TV and internet advertising—in the United States. The enormous growth in advertising has led to an equally robust growth in the way that consumers, advertisers, and public enforcement agencies have tried to “regulate” the truthfulness of advertising. Much of the activity is in private litigation—such as Lanham Act trademark claims between competitors. Equally active has been litigation by public enforcement agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Food and Drug Administration, and State Attorneys General. There are also more expeditious remedies such as the speedy arbitration before the National Advertising Division of the Better Business Bureau.
In the background for all of this activity is the First Amendment. The Supreme Court has recognized the right of commercial speech. Determining how that right is defined and protected in the context of disputes over false advertising has been a challenge that illuminates all of the litigation and enforcement actions in advertising. When does the ability of the Government – in the form of an enforcement agency or regulator – infringe on the free speech rights of the advertiser? Similarly, when does “regulation” by a court in terms of injunctions or remedies infringe on the free speech rights of advertisers? The Course will also explore the implications of the use of social media in the advertising world, and how that complicates the traditional analyses applied to consumer protection issues.