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Advertising, Marketing & Promotions Alert >> FTC Charges Online Negative Option Marketing Scheme with Deceiving Shoppers - Alert - 10/17/2017

The FTC’s complaint, and the district court’s response, highlight the continuing regulatory scrutiny into negative option marketing practices and the importance of disclosing the material terms of an offer in a clear and conspicuous manner to consumers before they pay or incur a financial obligation. Online marketers should keep firmly in mind federal laws, regulatory guidance as well as state-specific laws applicable to such negative option marketing programs when considering whether to adopt such a program and how to implement a consumer experience that will comply with such laws and regulations.

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Advertising, Marketing & Promotions Alert >> FTC Settles with Mobile App Developer Over Unauthorized Charges - Alert - 10/17/2017

The Pact case demonstrates that marketers can incur liability even when consumers affirmatively agree to be charged on a recurring basis. Unlike other negative option cases, there is no allegation here that consumers did not knowingly enter into a continuity plan – on the contrary, the whole purpose of the app is to be charged for failing to meet one's goals. Rather, the FTC's concern was that Pact failed to adequately explain how to stop recurring charges, and continued to charge users even after they fulfilled their pacts or asked to stop being charged. Online marketers should ensure that they are adequately disclosing all material terms of their continuity plans and strictly abiding by any promises or disclosures that they make to consumers. 

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Advertising, Marketing & Promotions Alert >> Local Challenges to Automatic Renewal Programs Continue in California: Now, the Beachbody Case - Alert - 09/28/2017

As the Beachbody case illustrates, businesses must clearly disclose to consumers the terms of auto-renewal programs and should obtain their express, affirmative consent before collecting any payments. Many states, as well as the federal government, have laws that address this specifically. The failure to do this could lead to costly litigation brought not just by federal and state authorities but, in some instances, by local authorities, too.

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Advertising, Marketing & Promotions Alert >> First Circuit Requires Identifiable Injury for Claims Asserting Deceptive Retailer "Compare At" Prices - Alert - 09/18/2017

Recent decisions from the First Circuit reign in consumers' ability to bring actions alleging false advertising in retailers' "Compare At" pricing, unless a consumer can demonstrate actual, identifiable harm separate from the mere purchase of a good in order to claim damages. However, even with the recent First Circuit opinions, many courts have left open the possibility of alleging injury based on theories of overpayment or price premiums, and therefore it is still critical for retailers to review their pricing policies and disclosures both online and in their stores to avoid future actions alleging that their pricing practices are deceptive.

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Advertising, Marketing & Promotions Alert >> FTC Brings First Ever Enforcement Action Against Individual Social Media Influencers; Updates Warnings and Guidance for Influencers and Marketers - Alert - 09/12/2017

The FTC’s action against Martin and Cassell and the new round of FTC warning letters make clear that the FTC will bring actions against influencers who violate the Endorsement Guides. Consequently, all parties involved in influencer marketing, from marketers, agencies, influencer networks, affiliate marketers, to the influencers themselves, can be subject to FTC action for failure to comply with the Endorsement Guides. In light of the FTC’s emphasis on clear and conspicuous disclosures in influencer marketing, all members of the influencer ecosystem should ensure that they have documented procedures in place to comply with the Endorsement Guides, including the FTC’s most recent guidance.

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Advertising, Marketing & Promotions Alert >> Instagram Adds Paid Partnership Tool for Transparency  - Alert - 07/17/2017

The new Instagram branded content tool is intended to provide greater transparency in the social media space by disclosing relationships between influencers and brands. Implementing this tool appears to be Instagram’s response to the FTC’s growing concern about paid endorsements on the platform.

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Advertising, Marketing & Promotions Alert >> FTC Reviews Rules, including CAN-SPAM, to Keep Pace with Changing Times - Alert - 07/17/2017

The FTC has announced its plans to review the Picture Tube Rule, the Textile Rules, the Energy Labeling Rule and the CAN-SPAM Rule. These rules aim to protect consumers while promoting healthy competition between businesses. The FTC's regulatory review is part of its ongoing effort to stay current with technology without burdening businesses with outdated and unnecessary regulations. The FTC is seeking public comment regarding the costs and benefits of each rule to identify where they should make modifications or rescissions.

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Advertising, Marketing & Promotions Alert >> Trampoline Sellers Settle FTC Charges Over Alleged Fake Logos, Websites and Reviews - Alert - 06/09/2017

As evidenced by the FTC's action against the Le brothers, companies should not use fake review sites or misleading third-party endorsements or seals to sell their products or disparage competing products. Instead, they should clearly and conspicuously disclose material connections that consumers would not expect and comply with the FTC's Endorsement Guides.

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Digital Media, Technology & Privacy Alert >> T Minus 1 Year Until GDPR: Are You Ready for Take Off? - Alert - 05/24/2017

It remains to be seen what will happen after the GDPR becomes effective on May 25, 2018. The GDPR compliance roadmap can be helpful for any organization that collects or processes personal data, whether or not an organization in or outside of the EU believes it is subject to the GDPR. With just one year of the two-year implementation period left, organizations should be well on their way to preparing for the impact of the new regulation.

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Intellectual Property Litigation Alert >> The Days of Patent Plaintiff Forum Shopping May be Over - Alert - 05/23/2017

The Supreme Court’s decision in TC Heartland establishes that just having sold goods in the judicial district is now insufficient on its own to establish jurisdiction. Patent holders bringing suit must do so in either the judicial district where the defendant resides, or the judicial district where the defendant has a regular and established place of business. The decision will likely discourage patent trolls from filing suit in the Eastern District of Texas and other jurisdictions with little to no connection to the defendant.

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Advertising, Marketing & Promotions Alert >> Amazon, FTC Withdraw Appeal of Decision Holding Amazon Liable for Billing Parents for Children’s Unauthorized In-App Charges - Alert - 04/26/2017

The district court's decision, no longer subject to appeal, is a clear statement that the unauthorized billing of parents for in-app purchases made by their children without informed parental consent violates the FTC Act. This case serves as a reminder that companies need to ensure that they clearly and conspicuously disclose their billing practices and obtain customer’s consent before charging them, especially when the charges are incurred by children.

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Advertising, Marketing & Promotions Alert >> FTC Tells Influencers to Disclose Connections on Social Media - Alert - 04/20/2017

The FTC’s letters to influencers and marketers highlight the importance of ensuring that "material connections" between influencers and marketers are "clearly and conspicuously" disclosed.  Marketers should review their social media marketing policies because failure to comply could result in action against the marketer, as well as any of its influencers who fail to disclose their material connections.  

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Advertising, Marketing & Promotions Alert >> Suit Challenges Jos. A. Bank Clothiers' "Up to" Percent Off Advertising - Alert - 04/19/2017

The class action lawsuit against Jos. A. Bank should serve as a reminder to advertisers to carefully consider state laws when advertising "up to" discounts or price ranges. Furthermore, this shows how class actions are serving in a very real capacity to replace regulatory actions. Many retailers choose to overlook price advertising regulations, or apply their own interpretation, because of fierce competition and lack of enforcement by state authorities. Class actions in the retail category have changed the legal landscape and should give all sellers reason to reexamine statutes (and related practices) that they long thought were dormant.

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Advertising, Marketing & Promotions Alert >> NAD Decision on Challenge to Wegmans' In-Store Point of Sale Displays Offers Guidance on Grocery Store Price Advertising - Alert - 04/05/2017

Although the NAD refused to disrupt precedent allowing grocery stores to update their comparative prices on a weekly basis, it left open the possibility that this standard could change upon evidence that retailers check prices more frequently. Retailers should, in all cases, ensure that they are providing accurate, up-to-date pricing comparisons, and that they are adequately disclosing the nature of those comparisons.

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Advertising, Marketing & Promotions Alert >> New Federal Law Protects Consumer Reviews of Products and Services - Alert - 03/20/2017

Companies that utilize form contracts, including online terms and conditions, to try to prevent consumers from posting negative reviews about its products, services or conduct, should review their contracts immediately to ensure that they are in compliance with the new law and remove any provisions that restrict consumers from sharing their honest reviews or that claim ownership over consumer’s reviews. It is important for companies to review their form contracts, because even if companies do not intend to act on these contractual provisions, they could still be in violation of the CRFA.

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PRWeekPro // Global Influencers - Press Mention - 03/13/2017



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