March 24, 2009 The Interplay Between the Food, Drug and Cosmetic Act and False Advertising Law Program Summary

The Interplay Between The Food, Drug and Cosmetic Act and False Advertising Law

March 24, 2009

Kramer Levin Naftalis & Frankel LLP and the National Advertising Division (NAD) of the Council of Better Business Bureaus hosted, at the firm's law offices in New York City, the firstĀ Coffee, Croissants and CLE Program. Kramer Levin litigation partners Harold P. Weinberger and Norman C. Simon, and NAD Staff Attorney Kathleen Dunnigan led the program.

The presentation, entitledĀ The Interplay between the Food, Drug & Cosmetic Act and False Advertising Law, examined the relationship between the Food Drug and Cosmetic Act and the Lanham Act, the federal law under which false advertising claims are brought. The presentation examined how and when statements about Food and Drug Administration approval of a drug, or claims related to a drug's bioequivalence or superiority to a generic version, may be challenged under the Lanham Act or through a proceeding brought at NAD.

To provide background for this discussion, Messrs. Weinberger and Simon provided a broad overview of the types of actionable claims that may be brought under the Lanham Act, the types of proof required to support such claims and the types of damages available to successful plaintiffs. As a counterpoint to this discussion, Ms. Dunnigan highlighted the differences between Lanham Act and NAD challenges, such as differing burdens of proof and remedies, as well as a program of voluntary compliance with NAD decisions.