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Advertising, Marketing & Promotions Alert >> FTC Offers YouTube Channel Owners Guidance on COPPA Compliance - Alert - 12/05/2019

As a result of the FTC’s action against Google and YouTube, YouTube channel owners will be required to designate whether their channels and content are “directed to children” under COPPA. The FTC’s recent guidance will help channel owners make this determination. This guidance is especially helpful in light of the FTC’s intention to conduct “sweeps” of the YouTube platform to determine whether child-directed content is being properly designated in accordance with COPPA.

In light of this guidance, we can expect the FTC to continue to enforce COPPA into 2020, including against YouTube channel owners whose content is directed to children in violation of COPPA.

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Advertising, Marketing & Promotions Alert >> The FTC is Drilling Down on Negative Option Marketing Practices - Alert - 11/21/2019

While the FTC’s action against Match plays out in court, it is worth noting that the FTC last initiated a regulatory review of the Negative Option Rule over a decade ago in 2009. When the FTC completed that review in 2014, it concluded that amendments were not warranted because the enforcement tools provided by the TSR and, especially, ROSCA, which had only recently become effective, might prove adequate. It remains to be seen whether the FTC will reach the same conclusion again — although in light of evolving media and technology, and the proliferation of subscription practices, it seems likely that significant changes to negative option marketing will be coming down the pipeline. 

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Advertising, Marketing & Promotions Alert >> FTC Releases New Resources for Influencers - Alert - 11/19/2019

The FTC’s brochure and microsite are new resources that will be helpful for both marketers training their influencers as well as to influencers themselves in making disclosures. This clear and practical guidance from the FTC should put all involved parties — including influencers — on notice that, in the eyes of the FTC, there are no longer any excuses for not complying with the FTC Guides.

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Advertising, Marketing & Promotions Alert >> FTC Brings Actions Against the Sale of ‘Fake Indicators of Social Media Influence’ and ‘Fake Reviews’ - Alert - 11/19/2019

The FTC’s actions challenging the sale of fake social media indicators and online reviews are intended to deter others from polluting the online marketplace with deceptive and inaccurate information. It is important to reiterate that the FTC brought its actions against two chief executive officers in their individual capacities, which may indicate a growing intention on the part of the FTC to hold those in charge responsible for complying with and ensuring their employees comply with the law.

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Advertising, Marketing & Promotions Alert >> SAG-AFTRA Imposes New Restrictions on Third-Party Signatories through New Letter of Adherence - Alert - 10/24/2019

The terms of the LOA are set to become effective on January 1, 2020. This deadline gives the signatories, advertisers and non-union agencies limited time to assess how the LOA’s new restrictions will impact their respective roles in the production process, and chart their best path forward.

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Advertising, Marketing & Promotions Alert >> Google and YouTube to Pay $170 Million in Largest Ever COPPA Settlement - Alert - 09/05/2019

The settlement reached by the FTC and the New York State Attorney General with Google and YouTube imposes significant costs on the companies, even beyond the record-breaking $170 million civil penalty. It is a signal to advertisers, content providers, app developers and website operators and hosts that regulators are serious about enforcing COPPA.

With the FTC looking once again to amend COPPA, we can expect more developments forthcoming in this area in the near future.

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Advertising, Marketing & Promotions Alert >> FTC to Review the Children’s Online Privacy Protection Act - Alert - 08/08/2019

The FTC’s latest COPPA review will not only impact online services that traditionally have been directed to children, but may extend to services that historically have not been considered child-directed, such as interactive television, interactive gaming and chatbots. The COPPA review will also examine whether COPPA should be modified to better address websites and online services that may not meet the current definition of “directed to children” but have a large number of child users, such as social media platforms that are popular with children.

Operators of online services should pay particular attention to the FTC’s COPPA review and the upcoming workshop. Please do not hesitate to contact us if you have any questions or would like Davis & Gilbert’s assistance in filing public comments with the FTC. We will continue to report on the FTC’s review and the workshop as developments warrant.

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NAD >> The NAD Exposes Hidden Fees - Alert - 07/10/2019

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Advertising, Marketing & Promotions Alert >> FDA Public Hearing on the Use of Cannabis and Cannabis-Derived Compounds in Food and Dietary Supplements - Alert - 06/03/2019

  • The FDA is in uncharted territory and has requested additional safety data to assess whether CBD and other cannabis-derived compounds can be safely added to food and dietary supplements.
  • The industry believes that CBD has the potential for significant health benefits, but is open to strong regulations over its use.
  • In order for comments to be considered, they must be submitted to the docket by July 2, 2019.

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Advertising, Marketing & Promotions Alert >> Two Websites Settle FTC Allegations That They Failed to Secure Consumer Data - Alert - 05/21/2019

The security of consumer data is an important priority for the FTC and has become even more important in recent years, particularly when such data is subject to attacks by malicious third parties. The FTC emphasized that both settlements contained “new requirements” going beyond requirements from previous data security orders.

Perhaps even more importantly, the FTC’s statement indicated that the agency has instructed staff to closely review its orders to determine whether they can be strengthened and improved, “particularly in the areas of privacy and data security” and particularly with respect to “data security assessments of companies by third parties.” This suggests that the FTC is likely to continue to bring such actions going forward — and may seek stronger penalties than it has in the past.

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Advertising, Marketing & Promotions Alert >> FTC and FDA Target Advertising of CBD Health Claims - Alert - 05/17/2019

The legalization of hemp is a major step in establishing a potentially significant new industry. However, producers and marketers need to exercise caution when making health-related claims in connection with hemp-based product. The FTC and FDA will continue to aggressively review related advertising to ensure that products are advertised truthfully.

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Advertising, Marketing & Promotions Alert >> FTC Settlement Over Charges of Misleading Consumer Reviews and Deceptive Negative Option Marketing Practices - Alert - 05/10/2019

The FTC continues to take action where it finds that marketers are engaging in misleading incentivized product review practices or enrolling customers in deceptive “free trial” negative option plans without providing the appropriate disclosures and obtaining the consumer’s affirmative consent to the terms of the plan.

Marketers should ensure that they are instructing their customers to adequately disclose any incentives they receive in return for posting product reviews online and that they should not be encouraging any incentivized reviews on websites that prohibit such reviews, including the BBB website. Marketers should also ensure that their “free trial” offers comply with the Restore Online Shoppers Confidence Act and other laws governing “free trial” negative option marketing plans.

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Advertising, Marketing & Promotions Alert >> FTC Plans Workshop on ‘Loot Boxes’ - Alert - 04/11/2019

A strong push has come forth from the likes of Senator Hassan, other legislators, the FTC and consumer lawsuits regarding consumer protection issues related to “loot boxes” in video games. This year may see efforts at regulating loot boxes move forward to the extent they have not done so to date, as the FTC prepares for its workshop on August 7, 2019.

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Advertising, Marketing & Promotions Alert >> Video Social Networking App Agrees to Pay $5.7 Million to Settle FTC’s COPPA Action - Alert - 03/25/2019

The sheer size of the Musical.ly settlement illustrates that the FTC continues to have a strong interest in enforcing COPPA. Online services cannot hide behind language in their terms and conditions claiming not to be child-directed when they include numerous activities that appeal to children and have actual knowledge they have collected personal information from children in violation of COPPA. Notably, this case came as a referral from the Children’s Advertising Review Unit (CARU), the children’s arm of self-regulation, thereby demonstrating the importance of self-regulation unless companies are willing to face significant regulatory penalties in the future.

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Advertising, Marketing & Promotions Alert >> FTC Brings First Action Against Company for Posting Fake Reviews - Alert - 03/12/2019

It should come as no surprise to companies that they should not be purchasing or posting fake reviews of their products as a way to improve sales to customers. The action against Cure Encapsulations and its owner shows that the FTC is interested in taking action to halt the publication of fictitious product reviews on retail websites such as Amazon.com. That’s another set of eyes watching and seeking to prevent companies from acting in this fashion.

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Advertising, Marketing & Promotions Alert >> FTC and FDA Sent Warning Letters to Companies Advertising Products that Claim Treatment of Disease - Alert - 03/07/2019

The FTC and FDA are aggressively reviewing companies’ websites and social media channels for false or unsubstantiated health claims and efficacy claims. Advertisements on company websites and in social media posts must avoid false or unsubstantiated health claims, and efficacy claims made for dietary supplements and other health-related products must be supported by competent and reliable evidence. Companies advertising these kinds of items should review their promotional materials with these letters in mind.



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