Guide · Commercial

Advertising Law: A Comprehensive Guide to the FTC Act and Lanham Act

15 U.S.C. § 45

Type
Guide
Jurisdiction
National
Date
2023-07-31
Topic
Commercial

U.S. advertising law runs on two engines that look similar and behave nothing alike. The FTC Act, 15 U.S.C. § 45, empowers a federal agency to police deception and unfairness under a low, prophylactic standard that requires no proof of actual injury and no proof of intent. The Lanham Act, 15 U.S.C. § 1125(a), lets an injured competitor sue in federal court for money and injunctions, but only if it can prove falsity, deception, materiality, and its own commercial injury. This guide traces both regimes from statute to case law: the reasonable-consumer standard, express and implied claims, the net-impression rule, the prior-substantiation doctrine and "competent and reliable scientific evidence," unfairness under § 5(n), Lanham standing after Lexmark, literal versus implied falsity and when a survey is indispensable, puffery, establishment claims, comparative advertising, the 2023 Endorsement Guides and influencer disclosure, pricing and negative-option marketing under ROSCA, "Made in USA" and green claims, dark patterns, and the remedial landscape after AMG Capital. It closes with the state-law overlay, the defenses that actually work, and the NAD self-regulatory route.

Advertising Law: A Comprehensive Guide to the FTC Act and Lanham Act

Commercial > Advertising and Marketing | Published 31 July 2023 - Updated 26 April 2025 | UpLaw - uplaw.us

Every advertisement is a promise, and American law provides two very different people to hold you to it: a federal agency that never has to prove anyone was actually hurt, and a competitor who has to prove everything but will take your profits if it does. Learn to see your own copy through both sets of eyes before you publish it.

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