Kelley Drye Ad Law Access Podcast

What could a major change to the GRAS framework mean for food companies? In this episode, we unpack the FDA’s proposed rule that would transform the long-standing voluntary GRAS notification system into a mandatory one, while also expanding the scope of the program and creating a streamlined pathway for certain substances already on the market. We explore what the proposal could mean for companies relying on self-affirmed GRAS determinations, including new notification requirements, transition periods, potential post-market scrutiny, and longer FDA review timelines. The proposal also raises significant questions about FDA’s legal authority and whether the agency has the resources to manage a substantial increase in submissions. For food and ingredient companies, the rule could represent one of the most significant changes to the GRAS framework in decades, making it important to assess current GRAS determinations and prepare for what comes next. Hosted by Simone Roach. Based on a blog post by Donnelly L. McDowell, Katie Rogers, and Cristina Ferretti.

When does harmless puffery turn into a claim that needs proof? In this episode, we unpack a recent NAD decision involving Howies Hockey’s “World’s Highest Quality” advertising claim and why context made all the difference. While NAD found the slogan was puffery when it appeared on its own, the same claim became an objective representation requiring substantiation when placed alongside specific, measurable claims about adhesive strength, durability, consistency, and other product attributes. The decision offers an important reminder for advertisers: even a broad boast may lose its puffery protection when the surrounding context gives consumers a reason to interpret it as a measurable promise about product performance. Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

When does a wine discount become too good to be true? In this episode, we unpack a court’s decision allowing a lawsuit against Safeway over its wine pricing practices to move forward, after plaintiffs challenged whether the retailer’s advertised discounts were based on genuine former prices. The case highlights a familiar risk in promotional advertising: a “sale” price can create legal exposure if the reference price used to show the discount does not reflect the price consumers actually paid for a meaningful period. As the litigation continues, the decision serves as another reminder that retailers should carefully substantiate comparative and former-price claims before raising a glass to their next promotion. Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

What makes a fee part of the advertised price, and when can it be treated as optional? In this episode, we unpack a California court’s recent decision interpreting the state’s Honest Pricing Law and its distinction between mandatory fees that must be included in an advertised price and optional charges that consumers can avoid. The case offers important guidance for businesses navigating California’s increasingly strict rules on pricing transparency, particularly when offering add-ons, service fees, or other charges that may arise during the purchasing process. As litigation and enforcement around hidden fees continue to grow, the decision is a timely reminder that how a fee is presented, and whether consumers can truly avoid it, can make all the difference. Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

What did July reveal about the future of advertising law and consumer protection? In this Summer Edition of the Ad Law Access Podcast, we take a step back from the month’s individual developments to explore the bigger trends shaping the legal landscape, from the application of traditional advertising principles to AI claims and growing scrutiny of data-driven and comparative pricing, to the expanding role of state attorneys general in privacy, child safety, affordability, and multistate enforcement. We also examine continued attention on environmental marketing, influencer disclosures, subscriptions, food delivery fees, and practical compliance strategies for businesses. One theme connects them all: the lines between advertising, privacy, consumer protection, and state enforcement are increasingly blurred, creating new compliance challenges for companies navigating today’s rapidly evolving marketplace. Hosted by Simone Roach.

What’s the difference between hard-hitting marketing and misleading pricing claims? In this episode, we unpack a recent NAD decision involving Harry’s and Gillette that explores the boundaries of comparative advertising, including when advertisers can rely on regular retail prices instead of temporary promotional discounts and how far they can go with aggressive language like “you’re getting ripped off.” The decision reinforces that comparative pricing claims must be grounded in prices consumers regularly pay, while also signaling that sharp, hyperbolic rhetoric may be permissible when it doesn’t cross the line into false or misleading advertising. For brands engaged in competitive marketing, the case offers valuable guidance on striking the right balance between persuasive messaging and legal compliance. Hosted by Simone Roach. Based on a blog post by Gonzalo E. Mon.

What makes one state’s approach to consumer protection worth watching? In this episode, we explore key takeaways from Kelley Drye’s webinar with leaders from the Maine Attorney General’s Office, examining how the state’s unique legislative election of its attorney general, robust citizen ballot initiative process, and needs-driven enforcement strategy are shaping consumer protection priorities. From cryptocurrency kiosk regulation and privacy protections to heightened scrutiny of private equity investments in healthcare and mobile home parks, the discussion highlights how emerging risks, local policy innovation, and multistate collaboration are redefining the enforcement landscape. For businesses, Maine offers an important reminder that consumer protection trends are increasingly being driven not just by regulators, but also by voters and state legislatures. Hosted by Simone Roach. Based on a blog post by Paul L. Singer, Abigail Stempson, and Beth Bolen Chun.

Privacy Perspectives: Data Broker Laws Are Expanding. Is Your Business in Scope? Data broker laws are expanding quickly, and their reach may extend beyond companies that traditionally think of themselves as data brokers. In this episode of Privacy Perspectives, Alex Schneider, Aaron Burstein, and Céline Guillou discuss the changing state and federal regulatory landscape, including New Jersey’s newly enacted requirements, California’s Delete Act, evolving definitions of data brokers, and the growing importance of understanding specific data flows. They also examine how these laws may affect retailers, advertisers, technology providers, and other businesses that collect, enrich, license, sell, or share consumer data. Aaron J. Burstein Partner Former attorney in the FTC’s Division of Privacy and Identity Protection [email protected] (202) 342-8453 www.kelleydrye.com/people/aaron-j-burstein Celine Guillou Special Counsel, Advertising and Privacy Group Former Enforcement Attorney, California Privacy Protection Agency [email protected] (213) 547-4946 www.kelleydrye.com/people/celine-m-guillou Alex Schneider Special Counsel, Advertising and Privacy Group [email protected] (202) 342-8634 www.kelleydrye.com/people/alexander-i-schneider RESOURCES Subscribe to the Ad Law Access blog: www.kelleydrye.com/subscribe Subscribe to the Ad Law News newsletter: www.kelleydrye.com/subscribe Visit the Advertising and Privacy Law Resource Center: www.kelleydrye.com/advertising-and-privacy-law Find all of our links here: linktr.ee/KelleyDryeAdLaw