False Advertising Litigation: 5 Key Takeaways on Challenges, Strategies, and Risk Mitigation

Legal experts Barry M. Benjamin and Andrew Lustigman recently provided a comprehensive framework for navigating false advertising challenges in a presentation for MyLawCLE. The session explored strategic approaches for companies dealing with advertising claim disputes, whether defending their own assertions or challenging those of competitors.

Benjamin, who serves as Managing Partner of Kilpatrick’s New York office and chairs the firm’s Advertising and Marketing group, collaborated with Lustigman from Olshan law to deliver practical insights into this complex legal landscape.

The presentation emphasized that strategic planning is paramount when handling advertising claims. Corporate marketing and business teams often harbor unrealistic expectations about legal timelines and may not fully comprehend the spectrum of potential risks. These risks extend beyond litigation to include government enforcement actions, class action lawsuits, competitor challenges, and reputational damage.

“Genuine reasons exist to avoid litigation,” the experts noted, pointing to significant concerns including financial costs, business disruption, resource diversion, unexpected consequences, disclosure of sensitive information, and unwelcome media attention. They stressed that attorneys must effectively manage stakeholder expectations to achieve optimal outcomes while minimizing costs and risks.

The legal experts highlighted the intricate interplay between federal and state regulations in false advertising cases. While the Lanham Act remains fundamental for competitor-initiated claims, state consumer protection statutes often create additional exposure through broader standing provisions, remedies, and class action possibilities.

Successful Lanham Act claims face substantial hurdles, requiring plaintiffs to demonstrate that statements were false, material to consumer purchasing decisions, and resulted in actual or likely injury. These requirements can be particularly challenging to satisfy in situations where false claims have not yet fully impacted the competitive landscape.

The presentation reaffirmed that proper substantiation remains essential for all advertising claims. Courts and regulatory bodies continue to scrutinize the quality, methodology, and timing of evidence supporting both express and implied claims. The legal standard of “reasonable basis” varies by context, requiring attorneys to consider factors such as product category, claim specificity, potential consumer impact, and industry standards when advising clients.

Comparative advertising received special attention during the discussion. While claims positioning products as “better, faster, stronger” can effectively differentiate offerings in the marketplace, they also invite heightened scrutiny. Companies must be prepared to substantiate all reasonable interpretations of superiority claims while avoiding misrepresentation or disparagement of competitors’ products.

The experts also addressed enforcement priorities of the Federal Trade Commission (FTC) and the National Advertising Division (NAD). Though NAD proceedings are technically voluntary, non-compliance can trigger FTC referrals, potentially leading to formal government enforcement actions. Recent trends indicate increased regulatory focus on environmental claims, health-related assertions, and influencer marketing practices.

The presentation underscored that proactive compliance and good-faith participation in self-regulatory forums represent best practices for avoiding more serious legal complications. As the regulatory environment continues to evolve, attorneys must remain vigilant in monitoring developments to effectively advise clients, limit liability exposure, and achieve favorable outcomes.

For legal professionals advising brands, agencies, or consumers, the insights provided by Benjamin and Lustigman offer a valuable roadmap for navigating the increasingly complex terrain of advertising law, where stakes remain high and regulatory scrutiny continues to intensify.