AWG Regulatory Roundup — January 28, 2025
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- President Issues Regulatory Freeze
- FDA & FTC Run Down – ICYMI
- Yogurt-Covered Fruits Snack, “Pure” Complaints Continue to Trend
- NAD Weighs In on Consumer Trust and Dermatology Endorsement Claims
- NAD Recommends Discontinuation of Eyelash Serum Claims and Disclosure of Material Connections
- AWG Speaking Engagements
President Issues Regulatory Freeze
On January 20, President Trump issued a regulatory freeze on new federal agency documents, including guidance documents. With respect to actions taken before January 20 that “frustrate the purpose” of the regulatory freeze, the President may “require that department and agency heads consider taking steps to address those actions.”
FDA & FTC Run Down – ICYMI
Speaking of actions taken before January 20, 2025, December and January were busy months for FDA, which is typical prior to an administration change. We’ve listed many of these important actions below, and reach out if you’d like to discuss how they may affect your business this year and beyond:
- FDA Finalizes Rule to Update the Definition of “Healthy” (December 19, 2024)
- FDA Announces Authorization for Food Contact Notifications Related to PFAS No Longer Effective (January 3, 2025)
- FDA Updates Food Allergen Labeling Guidance, Coconut No Longer a Major Allergen (January 6, 2025)
- FDA Issues Final Guidance on Evaluating the Public Health Importance of Food Allergens Other than the Major Food Allergens (January 6, 2025)
- FDA Issues Draft Guidance for Labeling of Plant-Based Alternatives to Animal-Derived Foods (January 6, 2025)
- FDA Issues Draft Guidance on Action Levels for Lead in Certain Foods for Babies and Young Children (January 6, 2025)
- FDA Finalizes Guidance for Industry on Animal Food Ingredient Consultation (January 6, 2025)
- FDA Withdraws and Replaces Compliance Policy Guide Sec. 665.100 Common or Usual Names for Animal Feed Ingredients (January 6, 2025)
- FDA Issues Draft Guidance on Artificial Intelligence-Enabled Device Software Functions (January 7, 2025)
- FDA Issues Proposed Rule to Require Front-of-Package Nutrition Labels (January 14, 2025)
- FDA Requests Information on High-Protein Yogurt (January 15, 2025)
- FDA Issues New FAQs for Medical Device Reporting, Complaints, and Corrections and Removals Reporting for Laboratory Developed Tests (January 15, 2025)
- FDA Requests Information on Industry Practices Related to Poppy Seeds (January 15, 2025)
- FDA Revokes Authorized Uses of Red No. 3 in Food and Ingested Drugs (January 16, 2025)
On January 20, 2025, President Trump officially designated Andrew N. Ferguson as Chair of the Federal Trade Commission, replacing Lina Khan. Below is a list of recent FTC actions issued prior to the transition:
- FTC Finalizes Rule Banning Junk Ticket and Hotel Fees (December 17, 2024)
- Stem Cell Therapy Companies and Co-Founders Banned from Marketing Stem Cell Treatments and Ordered to Pay $5.1 Million+ for Refunds and Civil Penalties (January 8, 2025)
- FTC Sues Company and its Officers for Allegedly Misleading Consumers Seeking Substance Use Disorder Treatment (January 13, 2025)
- FTC Issues Notice of Proposed Rulemaking and Advanced Notice of Proposed Rulemaking to Address MLM Earnings Claims (January 13, 2025)
- FTC Issues $1 Million+ in Refunds to Consumers Who Purchased “N-95 Grade” Face Masks During COVID-19 Pandemic (January 13, 2025)
- FTC Finalizes Changes to Children’s Privacy Rule Limiting Ability to Monetize Children’s Data (January 16, 2025)
Yogurt-Covered Fruits Snack, “Pure” Complaints Continue to Trend
Following similar complaints in 2024, class action plaintiffs kicked off 2025 by filing additional complaints targeting yogurt-covered fruit snacks, alleging the products claim to be made with yogurt but fail to meet FDA’s Standard of Identity for yogurt and lack the health benefits of yogurt. In addition, plaintiffs continue to target products marketed as “pure,” with the latest target being avocado oil, where testing allegedly revealed the presence of additional oils and/or detectable levels of Prop 65 chemicals.
NAD Weighs In on Consumer Trust and Dermatology Endorsement Claims
NAD advised P&G to discontinue the claim “From Tide, the #1 Trusted Detergent Brand for Sensitive Skin” because the substantiating consumer survey was ambiguous as to whether the respondents purchased the detergent because they or someone in their household had sensitive skin. Without knowing that, the NAD found the survey did not substantiate the claim that Tide is the “#1 Trusted Detergent Brand” for use on sensitive skin. Also, NAD advised P&G to modify the claim “From Tide, the #1 brand used by dermatologists” when used in connection with imagery for Tide Free & Gentle to avoid conveying the message that Tide Free & Gentle (instead of the entire Tide line) is the laundry detergent used by more dermatologists for sensitive skin.
NAD Recommends Discontinuation of Eyelash Serum Claims and Disclosure of Material Connections
While TikTok’s fall and sudden return have been in the news, the National Advertising Division has been busy looking at how companies manage compliance with TikTok Shop sellers. In a recent decision, NAD recommended cosmetic company NuOrganic take immediate steps to ensure influencers engaged through TikTok Shop adequately disclose material connections, as the Shop creates a financial connection triggering disclosure. NuOrganic argued it did not always have visibility or control into whether posters were connected to it through the TikTok Shop. NAD was not persuaded and pointed to the requirements under FTC’s endorsement guides. This decision is a good reminder to implement robust influencer training and follow best practices rather than rely on influencer programs run by others.
AWG Speaking Engagements
- Ivan Wasserman, Backing Your Claims with Competent and Reliable Scientific Evidence to Withstand Heightened Scrutiny, February 6-7 at ACI’s 8th Annual Legal, Regulatory, and Compliance Forum on Advertising Claims Substantiation in New York, NY.
- Rend Al-Mondhiry, Crafting Compliant Claims: Strategies to Safely Promote Health Benefits and Avoid Crossing a Regulatory Line or Catching the Attention of the Plaintiff’s Bar, February 12 during FoodNavigators’s Positive Nutrition Interactive Broadcast Series on Functional Beverages (Webinar).
- Bob Durkin, Regulatory Landscape, NutraIngredients-USA’s Sports & Active Nutrition Summit, February 19-21 in San Diego, CA.
- William Cole and Matthew Orr, Settling…for Less in CPG Litigation and Going the Distance: An Overview of Learning from Major CPG Trials, February 26-28 at CPG Legal Forum in San Diego, CA.
- Ivan Wasserman, In-Person Workshop C — Claims Substantiation LAB for the Beauty Industry: Interactive Working Group on Reviewing and Adjusting Marketing Claims to Avoid Legal Pitfalls, March 27-28 at ACI’s 12th Annual Legal, Regulatory, and Compliance Forum on Cosmetics & Personal Care Products in New York, NY.
Thanks for reading!
Rend Al-Mondhiry, Editor