Marketing Law Commons^™

A Disclosure-Focused Approach To Compelled Commercial Speech, Andrew C. Budzinski

Michigan Law Review

In 2010, the Food and Drug Administration passed a rule revising compelled disclaimers on tobacco products pursuant to the Family Smoking Prevention and Tobacco Control Act. The rule required that tobacco warnings include something new: all tobacco products now had to bear one of nine graphic images to accompany the text. Tobacco companies filed suit contesting the constitutionality of the rule, arguing that the government violated their right to free commercial speech by compelling disclosure of the graphic content. Yet First Amendment jurisprudence lacks a doctrinally consistent standard for reviewing such compelled disclosures. Courts’ analyses typically depend on whether the …

Antiques Roadshow: The Common Law And The Coming Age Of Groundwater Marketing, Dean Baxtresser

Michigan Law Review

Groundwater law in the United States is ill suited to deal with the issue of groundwater marketing. As freshwater shortages become more common with increasing population and a warming climate, scholars and business people are touting water markets as the solution to conservation and distribution, as well as a source of hefty profits. T Boone Pickens-the famous oil tycoon of Texas-has turned this concept into reality with his attempt to exploit the groundwater of the Ogallala Aquifer in the Texas Panhandle for thirsty Texas cities. Despite the looming water shortages, however, states have not adapted their laws to deal with …

Brand New Deal: The Branding Effect Of Corporate Deal Structures, Victor Fleischer

Michigan Law Review

Consider the unusual legal structures of the following four deals: When Google went public in 2004, it used an Internet auction to sell its stock to shareholders. When Ben & Jerry's went public in 1984, it sold its stock only to Vermont residents. Steve Jobs's contract with Apple entitles him to an annual cash salary of exactly one dollar. Stanley Works, a Connecticut toolmaker, considered reincorporating in Bermuda to reduce its tax liability. Under public pressure, it changed its mind and remains legally incorporated in Connecticut. What do these deals have in common? In each case, the legal infrastructure of …

Search And Persuasion In Trademark Law, Barton Beebe

Michigan Law Review

The consumer, we are led to believe, is the measure of all things in trademark law. Trademarks exist only to the extent that consumers perceive them as designations of source. Infringement occurs only to the extent that consumers perceive one trademark as referring to the source of another. The most "intellectual" of the intellectual properties, trademarks are a property purely of consumers' minds. The simple idealist ontology underlying trademark law is largely responsible for the law's characteristic instability. Since 1992, the Supreme Court has considered - and in some cases, reconsidered - seven trademark cases. The Court's copyright cases garner …

Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, M. Ryan Calo

Michigan Law Review

This Note argues that passing close to Discovery Network is the safest route - municipalities can still drastically reduce visual clutter by regulating commercial speech alone without violating the First Amendment. Part I looks at the onsite/offsite distinction, a singularly popular method of sign regulation, and concludes that this distinction runs squarely afoul of Metromedia. Part II looks at the once-accepted alternative route - the commercial/noncommercial distinction - and argues that this distinction does not run afoul of Discovery Network. Rather, a close reading of Discovery Network permits the regulation of exclusively commercial billboards where, as typically, they …

Restrictions On Electric Utility Advertising, Michigan Law Review

Michigan Law Review

This Note reconsiders the constitutionality of New York's restriction on advertising by electric utilities. Section I explains how and why the Supreme Court's current analysis of the first amendment distinguishes commercial speech from other forms of speech. Section II looks at what protection is due commercial speech and weighs the competing interests in the specific context of utility advertising. The Note concludes that states may restrict utility advertising to encourage energy conservation.

Fairness And Unfairness In Television Product Advertising, Michigan Law Review

Michigan Law Review

The first section of this Note explores the impact of television product advertising on viewer attitudes. The next two sections set forth the statutory basis on which the Federal Communications Commission and the Federal Trade Commission could provide for the effective presentation of contrasting points of view on controversial issues implicitly or explicitly raised by television product advertising, could ensure that the implicit messages of such advertisements are delivered fairly and without deception, and could counter the adverse effects of such advertising. The purpose of these sections is not to predict actual regulatory behavior, for in fact the FCC and …

The Ftc's Injunctive Authority Against False Advertising Of Food And Drugs, Michigan Law Review

Michigan Law Review

Two judicial decisions in the early 1950s construing the FTC's section 13 (a) power produced a conflict that has not been resolved either by later courts or by the amendments to section 13 enacted in 1973. The dispute basically concerns the depth of the courts' inquiry into whether an advertisement violates- section 12 and the applicability of traditional equitable concepts in the context of the statutory injunction procedure. This Note contends that the legislative history of pertinent provisions of the Act suggests an appropriate resolution of the conflict through a two-step approach that would relax the scrutiny ordinarily accorded petitions …

Billboard Control Under The Highway Beautification Act Of 1965, Roger A. Cunningham

Michigan Law Review

Although the advertising control provisions of the Highway Beautification Act of 1965 have been the subject of unremitting controversy from the date of enactment until the present time, only three substantive amendments to title I have been adopted in the intervening years. These are the amendments to subsections ( d) and (j) and the addition of a new subsection (n) all of which were adopted in 1968.

Corrective Advertising And The Ftc: No, Virginia, Wonder Bread Doesn't Help Build Strong Bodies Twelve Ways, Michigan Law Review

Michigan Law Review

This Note will outline the development and theory of corrective advertising. In particular, it will discuss the residual effects of deceptive advertising, which are the basis for a corrective remedy. The Commission's statutory authority to require corrective advertising will then be explored: the analysis will compare corrective advertising with other types of affirmative disclosure required by the Commission and relate it to the present use of divestiture as a trade regulation remedy. Finally, the possible public benefit accruing from corrective advertising will be considered, along with some thoughts on what policies the FTC should pursue in order to maximize that …

Bauer & Greyser: Advertising In America: The Consumer View, Robert L. Birmingham

Michigan Law Review

A Review of Advertising in America: The Consumer View by Raymond A. Bauer and Stephen A. Greyser

Boycotts And Restrictive Marketing Arrangements, Richard M. Buxbaum

Michigan Law Review

It is currently a common if still relatively unheralded practice for a "fired" dealer to bring an antitrust action against his former manufacturer-supplier (and perhaps other dealers), alleging that his termination was the result of a boycott. Boycotts-collective efforts to obtain the exclusion of a party from a market-are illegal per se under section 1 of the Sherman Act. Thus, questions concerning the justification for the boycott or the significance of the offender's market position do not arise.

Ftc May Determine Whether Advertisements Containing Therapeutic Claims In Promotion Of Health Books Are Deceptive- Rodale Press, Inc., Michigan Law Review

Michigan Law Review

Rodale Press advertised that the ideas and suggestions in its publication, The Health Finder, would increase life span, prevent various diseases, and permit savings on medical and dental expenses. The Federal Trade Commission challenged the advertising claims, which were substantially restatements of claims made in the book, on the ground that adherence to the book's suggestions would not effect the promised results. The hearing examiner denied Rodale's motion to dismiss the complaint. On request for permission to file an interlocutory appeal from the dismissal, held, request denied, one commissioner dissenting. The Commission may challenge the collateral claims in …

Canon Of Professional Ethics-Cooperation In Preparation Of News Articles As Advertising In Violation Of Canon 27, Joseph F. Mcdonald

Michigan Law Review

Two recent decisions were the first to construe the prohibition against indirect advertising embodied in Canon 27 of the Canons of Professional Ethics. Although the facts and issues involved were substantially alike, the holdings were divergent.

At the request of a local Miami newspaper, respondent submitted to an interview which formed the basis of a full page article in the "Sunday Supplement." The article see forth a complimentary biography of respondent and described the internal workings of his firm. Respondent was found guilty of violating Canon 27 by the Grievance Committee of the Florida State Bar Association. The recommendation was …

Insurance-Regulation Under The Mccarran-Ferguson Act-Ftc Jurisdiction Not Ousted By A State Statute Proporting To Control Deceptive Advertising Mailed To Other States, Thomas D. Heekin

Michigan Law Review

Petitioner issued a cease-and-desist order prohibiting respondent from making statements in its advertising materials which violated the Federal Trade Commission Act. Respondent, a Nebraska health insurance company, mailed its circulars to residents of every state. The McCarran-Ferguson Act provides that "the Federal Trade Commission Act ... shall be applicable to the business of insurance to the extent that such business is not regulated by State law." A Nebraska statute prohibits an insurer domiciled there from engaging in unfair business practices in any state. In an action to set aside the FTC cease-and-desist order, the Court of Appeals for the Eighth …

Taxation - Ordinary And Necessary Expenses - Deduction Of Advertising Expenses Incurred To Defeat State Initiative Measures, Robert J. Paley S.Ed.

Michigan Law Review

Petitioners were members of a partnership engaged in the wholesale distribution of beer in Washington. In 1948 the partnership made contributions to a publicity campaign instituted to defeat an initiative to be presented to the voting public, the passage of which would have placed retail beer and wine sales exclusively in state hands. In their 1948 tax returns petitioners deducted the amount contributed as ordinary and necessary business expense. After the Commissioner disallowed the deduction the petitioners paid the deficiency under protest and sued for a refund in the district court. That court denied the refund, ruling that the payments …

Unfair Trade - Practices - Robinson-Patman Act - Payments For Advertising Under Sections 2 (D) And 2 (E), Robert Segar

Michigan Law Review

Plaintiffs, wholesale and retail grocers, brought a class action for treble damages and injunctive relief under sections 2(d) and 2(e) of the Robinson-Patman Act. Defendant suppliers of defendant-A & P Co. had paid for advertising in Woman's Day, a magazine published by a wholly-owned subsidiary of A & P, without making a corresponding allowance available to plaintiffs who had no similar publication. The district court found no violation of section 2(e) since the suppliers were not contributing to the furnishing of a discriminatory service within the meaning of that section. Because the advertising was designed primarily to aid defendant-suppliers, …

Unfair Competition - False Advertising - Scope Of Federal Jurisdiction Under Section 43(A) Of Lanham Act, John D. Kelly S.Ed.

Michigan Law Review

Plaintiff brought suit in a state court seeking injunctive relief, alleging unfair competition by defendant in manufacturing and selling slavish copies of plaintiff's swimsuits. One of the six causes of action alleged in the complaint was based on a violation of section 43 (a) of the Lanham Act. Defendant had the suit removed to federal district court. On motion to remand, held, denied. The alleged violation of section 43 (a) created a federal right of action within the original jurisdiction of the federal courts. Catalina, Inc. v. Gem Swimwear, Inc., (S.D. N.Y. 1958) 162 F. Supp. 911.

Insurance - Federal Regulation - Authority Of Federal Trade Commission To Regulate False Advertising By Insurance Companies As Affected By The Mccarran-Ferguson Act, Charles C. Moore S.Ed.

Michigan Law Review

Petitioner, the FTC, issued cease and desist orders prohibiting respondent health and accident insurance companies, doing business in interstate commerce, from disseminating allegedly false and deceptive advertising through the medium of local agents. These orders, issued pursuant to the FTC act, sought to proscribe such activity both in states that had statutes prohibiting unfair and deceptive practices and in states that did not. The Courts of Appeals for the Fifth and Sixth Circuits concluded that the FTC had no authority to regulate such advertising in states which had prohibitory legislation. On certiorari to the United States Supreme Court, held, …

Note And Comment, John R. Rood, Henry M. Bates, Werner W. Schroeder, Robert E. Richardson, Hollace M. Reid

Michigan Law Review

Can a Manufacturer be Compelled to Sell? - The fight for price maintenance is not yet completely settled, despite, the decisions in Dr. Miles Medical Company v. Parks & Sois Company, and Baiter & Cie v. O'Donnell, which held invalid contracts, whether nominally of agency, or of sale, between manufacturer and wholesaler or jobber whereby the latter in purchasing agreed himself to maintain and to sell only to others who would maintain a schedule of prices established by the manufacturer. But there are more ways than one of maintaining prices. One of these is to refuse to sell to persons …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Attorney and Client--Lien--Settlement Pending Judgment; Bankruptcy--discharge--Liability Absolutely Owing; Bankruptcy--Partnership--Individual Estate of a Partner; Banks and Banking--Checks on Trust Funds--Deposit to Personal Account of Trustee--Liability of Bank; Banks and Banking--Deposit Slip Headed by Mistake in Another's Name--Bankbook Does not Control; Constitutional Law--freedom To Contract--Master and Servant--Regulating Hours of Service; Constitutional Law--Interstate Commerce--solicitation of Orders for Sale of Intoxicating Liquors; Criminal Law--Offenses by Drivers of Automobiles; Damages--Extent of Liability on Replevin Bond; Damages--What may be Considered in Mitigation in Action for Libel; Deeds--Delivery--Grantee's Name Blank; Equity--Injunction to Restrain Cutting of Timber--Policy of State; Federal Procedure--Removal of Causes--Fraudulent Joinder; Gaming--"Bookmaking"--Oral Bets; Garnishment--Set-off of …

Recent Important Decisions, Michigan Law Review

Michigan Law Review

Bankruptcy--Trustee's Right to Enforce Stockholder's Statutory Liability; Bills and Notes--Failure of Consideration--When Maker is Estopped From Pleading It; Bills and Notes--Instrument Payable After Death--Whether Valid Obligation or of a Testamentary Character; Carriers--Interstate and Intrastate Commerce; Carriers--Regulations Relative to Shipment of Live Stock; Constitutional Law--Equal Protection of Laws--Foreign Corporations--Statute Forfeiting Right to Do Business; Constitutional law--Police Power--Personal Liberty--Photographing Persons Charged With Crime; Contempt--Murder of Prisoner Pending His Appeal; Counties--Action by Taxpayer--Compensation of Attorney; Criminal Law--What Constitutes a Disorderly House; Damages--Allowance of Attorney's Fees--rule in Hadley v. Baxendale Applied; Eminent Domain--Taking or Damaging Property--Noise and Smoke From Operation of Railroad; Equity--Illegal Contract--Duty …

Note And Comment, Edward S. Rogers, Horace Lafayette Wilgus, Edward A. Macdonald, Floyd Olds, J. Fred Bingham, Michael F. Shannon, Sidney F. Duffey

Michigan Law Review

The Doctrine of Unfair Trade; Valuing Property and Franchises of Public Service Corporations for Fixing Rates; Right of the Interstate Commerce Commission to Adduce Testimony; Rule in Shelley's Case controls Estate Created by Deed to Trustee; The Right of the Garnishee to Dispose of Goods in His Possession While the Litigation is Pending; The Police Power, Billboards and Sky Signs; How Far the Record of Voting Machines is Conclusive;

Note And Comment, Henry M. Bates, Harry B. Hutchins, Ralph E. Jenney, Charles L. Dribble, Charles H. L'Hommedieu

Michigan Law Review

Internal Revenue Tax on State Dispensaries Upheld; What is the Practice of Medicine?; Appeals from Decrees for Costs; The Hearst Election Contest; The Lapse of a Legacy to a Deceased Child; Unsightly Advertisements and Billboards