The Scope of CDA and DMCA Protection for Online Services Continues to Evolve

The Communications Decency Act (CDA) and Safe Harbor provisions of the Digital Millennium Copyright Act (DMCA) give some protections to operators of websites and other online services from some third-party claims arising out of user generated content.  The law is continuing to evolve.  Click here to see a terrific summary of notable cases and legislation posted on the BakerHostetler Copyright, Content, and Platforms blog written by Alan Friel and Zoe Steinberg.  In short, online services that permit users to post and display messages, photos, profiles, reviews and other content should carefully administer user content programs to try to qualify, as much as practical, for the protections available under the CDA and DMCA. While there are gaps in the scope of protection and not all eligibility requirements may be met in all instances, these protections are important tools for online services to reduce their user content risks.

Supplement Sellers Beware

Recognizing the rapid growth and penetration of dietary supplements into all demographics of American consumers, the Food and Drug Administration (FDA) is viewing at least some dietary supplements as belonging to “the Wild West,” and intends to be Wyatt Earp. Or supplements are the Wild Wild West and the FDA is Will Smith, if that’s your thing. Recently, the agency announced an initiative to increase regulation of dietary supplements, reacting to what it describes as “the growth in the number of adulterated and misbranded products” on the market. At the same time, the agency was careful to say that “most players in this industry act responsibly.” Adding bite to its bark, the FDA took action the same day it made this statement, issuing 12 warning letters and five online advisory letters to offending companies. The enforcement effort specifically targeted dietary supplements that make unlawful drug claims related to treating Alzheimer’s and other diseases.  Continue Reading


Change, they say, helps keep you young. We certainly hope so. We are very excited about our new home at BakerHostetler and the opportunity to add a blog to the Advertising, Marketing and Digital Media team’s highly regarded weekly newsletter. (If you aren’t already receiving the newsletter, you should be. Click here to subscribe.) Anchored by partners Linda Goldstein and Amy Mudge, BakerHostetler’s adlaw team has decades of experience and knowledge. Many of the team’s members will contribute timely, in-depth and insightful analysis of some of the more interesting developments in advertising and marketing law.

Our BakerHostetler colleagues are also serial bloggers, covering topics such as privacy, intellectual property and class actions, and we hope you’ll follow some of them as well. We look forward to rekindling our blogging relationship with many of you and to attracting new readers.

— Amy Mudge and Randy Shaheen

I Just Want to Say One Word to You – Just One Word: CBD

Picture of CBD oilIf the movie The Graduate were rebooted today, this would undoubtedly be the advice that Mr. McGuire would give the young Benjamin. However, a lot of legal and regulatory questions still swirl around the future of cannabidiol (CBD) oil products. At the GMA Conference earlier this week, Sharon Mayl, senior advisor for policy at the Food and Drug Administration (FDA) – and one of the individuals tasked with overseeing the FDA’s efforts with regard to marijuana and related products – gave an assessment of where things currently stand with regard to CBD.

Mayl noted that the issues regarding CBD products can be complex and confusing and that currently there is an interagency team at the FDA meeting regularly on marijuana issues. She acknowledged that the December 2018 Farm Bill eased legal impediments to the marketing of hemp-related products but nothing in the bill removed these products from FDA authority or oversight, so any type of therapeutic benefit claim associated with CBD oil would be considered a drug claim by FDA. Continue Reading

Are Reports of the Federal Trade Commission’s Death Greatly Exaggerated?

Federal Trade Commission Doorway SignThe multiverse is abuzz about the recent Third Circuit ViroPharma decision and other like-minded courts that have placed significant limitations on the ability of the Federal Trade Commission to obtain an injunction in federal court against allegedly unlawful behavior that companies have already ceased.

The FTC Act as originally written required that the agency bring any enforcement action in an administrative proceeding. However, as anyone who has ever been involved in an administrative proceeding knows, such proceedings can move slowly (think “watching paint dry”) and do not provide for preliminary injunctive relief before any final order is issued even in situations where there could be considerable harm to consumers from an ongoing practice. Continue Reading