What constitutes “false advertising” of drugs or devices within § 5 and 12 of the Federal Trade Commission Act (15 U.S.C.A. § 45, 52)

May 12, 2014

ScaleThis annotation collects and analyzes the federal cases and representative decisions of the Federal Trade Commission which have discussed what constitutes false advertising of a drug or device within § 5 of the Federal Trade Commission Act (15 U.S.C.A. § 45), which section declares unfair or deceptive acts or practices in or affecting commerce to be unlawful, or within § 12 of the Act (15 U.S.C.A. § 52), which prohibits dissemination of false advertising relating, inter alia, to drugs and devices, and which makes such dissemination an unfair or deceptive act or practice within the meaning of 15 U.S.C.A. § 452.

Cases discussing misleading or deceptive trademarks or tradenames are not included herein, unless also discussing the false or deceptive character of advertising incorporating such trademarks or tradenames. Cases discussing misleading statements on labels or packaging are not included.

It is intended, for purposes of this annotation, to follow generally the definitions of the terms “drug” and “device” as specified in 15 U.S.C.A. § 55(c) and (d). The inclusion or exclusion of particular products is not intended to represent the position of courts or of the FTC as to their proper characterization. Some types of product which might be classified as a “drug,” but which also seem to fall within one of the other categories of products specified in 15 U.S.C.A. § 52 not within the scope of the annotation, have been excluded; for example, fingernail preparations, preparations for the treatment of dandruff or hair loss, and skin creams advertised to have a beneficial effect upon the complexion.
Certain products considered to be “foods” rather than “drugs” have been excluded even though the advertising in question stressed alleged benefits to health obtained from the use of the products.

Cases merely reciting that the findings of the Federal Trade Commission as to false advertising were supported by substantial evidence, without discussing the factors involved in the determination that particular conduct constituted false advertising, have not been included.

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