Stay ADvised: 2026, Issue 6

In This Issue:

• Early Signals: YTD Food + Bev Litigation Trends
• Ad Law Dashboard–March 2026
• NAD 2025 Trends: Heightened Scrutiny for Health, AI, Influencer, and Origin Claims

Early Signals: YTD Food + Bev Litigation Trends

The Usual Suspects: Purity, Protein, and Performance

If 2026 feels familiar, that's because it largely is. Investigations and filings in the food, beverage, and dietary supplement space continue to target long-running themes: "natural" and "no artificial" claims, ingredient prominence disputes, protein content representations, and functional benefit messaging such as "supports immune health," "boosts energy," or "improves focus."

Unsurprisingly, theories of false "natural" and "no artificial" claims show particularly strong links between the volume of plaintiffs' attorneys advertising for potential cases and actual filings. In short, the core labeling attack playbook that we've seen in the recent past remains very much in circulation.

The New Player: Pricing Theories Gain Momentum

What does feel different in 2026 is the uptick in pricing and false discount investigations by plaintiffs' firms. This includes growing scrutiny of "was/now" comparisons, alleged fictitious reference prices, "compare at" savings claims, limited-time promotions, and subscription or auto-renewal disclosures.

Unlike traditional label-based cases, these matters do not turn on formulation or scientific substantiation. Instead, they focus on consumer perception, promotional mechanics, and compliance with state pricing statutes. That shift expands exposure beyond what the product contains or promises to how it is marketed and sold. Whether these investigations will materially translate into actual filings remains to be seen.

The Takeaway

• For stakeholders, the risk landscape so far this year is evolutionary, not revolutionary. The established theories—purity, ingredient integrity, and functional benefit claims—remain firmly entrenched. But pricing strategy is increasingly part of the litigation conversation.
• The practical implication: Brands should be thinking not only about what the label says and what support sits behind it, but also about how discounts, comparisons, and promotions are structured. In 2026, plaintiffs are looking at both the product and the price tag.

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Ad Law Dashboard–March 2026

Introducing our advertising risk dashboard that highlights key advertising issues and trends that we’re watching closely.

1) "Made in USA"—Expect More Flags (and More Scrutiny)

As the U.S. approaches its 250th birthday, expect an uptick in patriotic marketing—and with it, increased scrutiny of "Made in USA" claims. As we discussed in our recent coverage, the FTC's "all or virtually all" standard remains firmly in place, and enforcement activity continues to reinforce that origin claims are a priority. NAD challenges and consumer suits also remain active.

Why it matters: When brands wrap themselves in red, white, and blue, regulators and plaintiffs tend to look closely at what's underneath. Unqualified origin claims require rigorous supply-chain substantiation. If your marketing leans into "Made in USA" messaging, now is the time to audit claims, confirm documentation, and ensure qualifiers (if needed) are clear and conspicuous.

(See: February 11, 2026; February 2, 2026; Made in USA Claims: Lawsuits and FTC Scrutiny; January 9, 2026–Section Four)

2) Pricing Claims: The Numbers Still Have to Add Up

Reference pricing, "was/now" promotions, and fee disclosures remain under the microscope. Regulators and competitors continue to test whether former prices are bona fide, comparisons are supported, and total costs are transparent. As we've noted, several state regulators have signaled potential enforcement interest in surveillance and algorithmic pricing practices—particularly where dynamic pricing models may be perceived as opaque, discriminatory, or insufficiently disclosed.

Why it matters: What once felt like standard promotional mechanics are increasingly being framed as broader deception narratives, especially in jurisdictions with aggressive consumer protection statutes. Substantiation, timing, disclosure clarity, and internal alignment between pricing strategy and public messaging are critical. Companies using dynamic or algorithmic pricing tools should ensure that representations about price, savings, and fairness accurately reflect how pricing decisions are actually made and disclosed if required.

(See: November 17, 2025–Section One; December 12, 2025; February 11, 2026–Section Three)

3) Email Marketing: Subject Lines in the Crosshairs

As discussed in our February 2 and November 17 updates, a 2025 Washington Supreme Court decision interpreting the state's Commercial Electronic Mail Act (CEMA) has materially expanded potential liability for commercial emails. The court held that "false or misleading" subject lines are actionable—even where the email clearly promotes a commercial offer—opening the door to challenges targeting common urgency language, deadline extensions, and promotional framing.

Since that ruling, plaintiffs' firms have filed dozens of class actions against retailers and consumer brands, often focusing on subject lines such as "Last Chance" or "Ends Tonight" where the promotion later reappears. With a private right of action and statutory damages available for each email, even high-volume, routine campaigns can create exposure.

Why it matters: CAN-SPAM compliance alone is not enough. National marketers should review subject lines, urgency language, and promotional cadence through a state-law lens—particularly in Washington—and ensure internal marketing practices align with the literal terms of the claims being made.

(See: February 2, 2026–Section One; November 17, 2025–Section Two)

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NAD 2025 Trends: Heightened Scrutiny for Health, AI, Influencer, and Origin Claims

The National Advertising Division (NAD) released its 2025 Annual Report recently, underscoring an increasingly assertive environment for advertising substantiation, particularly in health, AI, influencer marketing, and origin claims. Here are highlights that caught our attention:

• Health-related advertising led the docket, with dietary supplements, prescription drugs, compounded GLP-1 medications, and longevity-focused products drawing sustained scrutiny. The report reflects a meaningful volume of cases involving efficacy, comparative performance, and establishment claims—reinforcing that NAD continues to examine whether outcome-oriented health claims are supported by competent and reliable evidence and whether messaging appropriately aligns with the underlying data.

  Bottom line: Particularly as it relates to the prescription drug industry, the uptick in cases suggests that NAD may now be viewed as a viable enforcement option, particularly given shifts at the FDA and FTC that may impact enforcement resources. Further, health and wellness claims—especially those tied to significant medical conditions or performance outcomes—remain prime targets for competitor challenges and require disciplined substantiation strategy.

• Artificial intelligence claims also moved to the forefront. NAD increased monitoring of AI-powered productivity tools and consumer products incorporating AI functionality, emphasizing that AI claims are subject to the same truth-in-advertising standards as any other technology. Decisions highlighted issues such as overstating objective performance, promoting features that are not yet available, and failing to clearly disclose material limitations where functionality or accuracy varies.

  Key takeaway: Labeling a product "AI-powered" does not relax substantiation standards (even for a business-to-business audience), and material limitations must be clearly and conspicuously disclosed in close proximity to the claim.

• Influencer marketing likewise remained a central focus. The report notes both continued case activity and consumer research showing high engagement but low trust in influencer advertising, driven largely by concerns about transparency. NAD monitoring decisions emphasized that clear and conspicuous material connection disclosures must be made by all participants in the influencer ecosystem, including brands, agencies, and influencers themselves.

  What this means for brands: Influencer compliance must extend beyond contractual disclosure language to active oversight, training, and monitoring of real-world execution.

• Finally, the report reflects ongoing attention to "Made in USA" and environmental claims, particularly as the FTC has increased emphasis on U.S.-origin enforcement. NAD decisions in this area illustrate the nuance involved in applying the FTC's "all or virtually all" standard, including analysis of the functionality of foreign-sourced components and the distinction between "Made in USA" and "Assembled in USA" claims. Combined with the fact that approximately 20% of NAD matters arise from its own monitoring efforts, the 2025 docket serves as a reminder that even absent competitor challenges, high-visibility claims are likely to draw scrutiny.

  Final takeaway: As we have seen with class action lawsuits relating to allegedly false green claims and lack of influencer disclosures, NAD precedent is not just dispute-resolution guidance—it is an early warning system for enforcement and litigation risk in 2026.

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We are very pleased to announce Trust Issues, a new monthly newsletter from DWT's Privacy & Security group. Trust Issues provides both in-depth analysis and timely updates for in-house counsel and business leaders regarding data governance developments in privacy, cybersecurity, and artificial intelligence. You can read our first issue here. Please feel free to contact a member of the newsletter's editorial team if have any questions about how developments discussed in this month's issue may impact your company.