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Advertising, Marketing & Promotions Alert >> NAD’s BuzzFeed Decision May Be a Roadmap for Affiliate Marketing - Alert - 10/03/2018

Online publishers using affiliate links in association with content that reviews or recommends products to consumers must disclose their relationship with the retailers. In addition, online publishers using affiliate links in paid-for advertising must be able to substantiate product claims in their content.

As the NAD’s BuzzFeed decision makes clear, however, when content is not a paid commercial message but, rather, is independent editorial content, there is no requirement that the publisher be able to substantiate claims about the product made by its editorial staff despite the presence of affiliate links in the article. Other online publishers and marketers should be mindful of the steps taken by BuzzFeed to maintain independence between editorial content and commercial affiliate marketing activities.

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Advertising, Marketing & Promotions Alert >> Supreme Court Rules "Amazon" / "Nexus" Taxes Are Permissible - Alert - 07/12/2018

The Supreme Court’s Wayfair decision confirmed that states may collect sales tax on internet sales between consumers and retailers who don’t have a physical presence in the state. In anticipation of a flurry of related legislation, online retailers, marketing affiliates and all participants in the e-commerce ecosystem should monitor legislation to determine their tax obligations in each state going forward.

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Advertising, Marketing & Promotions Alert >> Legal Risks Abound as the World Cup Kicks Into Gear - Alert - 07/09/2018

Although Russia's World Cup Law is not enforceable in the United States – and we cannot advise on marketing activities conducted in Russia – FIFA has made clear that it views ambush marketing in whatever form as unlawful and infringing on its intellectual property rights. Accordingly, marketers will walk a particularly fine line when attempting to leverage the 2018 World Cup in Russia, and as always should consult counsel before trying to jump into the mix.

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Litigation Alert >> "Dialing It Back?" Federal Courts Weigh in on "Autodialers" After Appeals Court Strikes Down FCC Interpretation of TCPA - Alert - 06/20/2018

In the aftermath of the DC Circuit's ruling striking down the FCC's interpretations of what constitutes an ATDS under the TCPA, ambiguity abounds. While the Herrick ruling represents a very positive development for marketers and their agencies, the Reyes ruling demonstrates that those companies still need to exercise caution in complying with the TCPA. Until the FCC issues further guidance – and likely even after it does so – marketers and agencies must continue to consult counsel to ensure any telemarketing or texting campaigns comply with the TCPA’s requirements.

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Trademark >> What’s In a Name? - Alert - 05/24/2018

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Advertising, Marketing & Promotions Alert >> Federal Appeals Court Strikes Down Key Parts of the FCC’s TCPA Order - Alert - 05/14/2018

The court's decision sends the FCC back to the drawing board, providing the marketing industry with an opportunity to offer input as the FCC reconsiders its interpretation of the TCPA. Indeed, a coalition led by the U.S. Chamber of Commerce has petitioned the FCC to craft a narrow definition of "autodialer" to replace the broad definition struck down by the court. Meanwhile, the TCPA remains the law, as do the portions of the FCC’s 2015 order that the court let stand. In the wake of the court’s ruling, marketers and their agencies should consult with counsel about the TCPA’s application to their businesses before continuing with any telemarketing or text message campaigns.

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Advertising, Marketing & Promotions Alert >> NCAA Obtains Injunction Over "March Madness" and "Final Four" Trademarks - Alert - 03/12/2018

The NCAA has a history of diligently monitoring "Final Four," "March Madness" and other trademarks connected to the Division I Men's Basketball Tournament, and will be quick to act on unauthorized uses, especially when used to market or promote third-party products. Although trademarks associated with popular events (including the Super Bowl, Oscars and Olympics) can be a compelling way to connect with consumers, brands and agencies should consult counsel before seeking to leverage the trademarks of any entity to avoid possible and costly litigation.

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Advertising, Marketing & Promotions Alert >> FCC Proposes $13.3M Fine Against Sinclair Broadcast Group for Apparently Violating Sponsorship Identification Rules - Alert - 01/29/2018

The FCC's enforcement action against Sinclair for apparent failure to disclose sponsorship identification resulted in a record-setting proposed fine. This is part of a larger, recent trend by regulators ensuring that relevant material information is disclosed to consumers in an appropriate manner. Recent actions by the Federal Trade Commission (FTC) involving native advertising and disclosure of material connections by influencers in social media form the other component of this trend. What they all highlight, in a basic way, is that regulators believe that consumers have a right to know when they are being advertised to, and a failure to disclose content as an ad when it isn’t obvious represents a clear violation of such basic rule. Marketers, broadcasters and those in the advertising ecosystem should make certain that paid programming and any material connections are properly disclosed to consumers.

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Advertising, Marketing & Promotions Alert >> FTC Announces First COPPA Action Involving Connected Toys - Alert - 01/11/2018

As the first COPPA case involving connected toys, the FTC's settlement with VTech should be a reminder to all companies that they must fully comply with COPPA and must take reasonable steps to protect sensitive data, particularly any data collected from children. In addition, companies should review their privacy policies to ensure that they are not making any misrepresentations in their policies, particularly with respect to the security and confidentiality of the personal information collected from users.

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Advertising, Marketing & Promotions Alert >> SAG-AFTRA Commercials Contract Modified to Provide "Free Bargaining" as to Compensation for Low-Budget Digital Productions - Alert - 10/24/2017

Effective immediately, the SAG-AFTRA Commercials Contract has been modified to include a waiver allowing for "free bargaining" of economic terms for digital productions with a budget of $50,000 and under. A mid-contract waiver of this magnitude is rare and signals a clear recognition by SAG-AFTRA and the JPC that immediate relief was necessary for signatory agencies to compete on the digital front. As SAG-AFTRA and the JPC put it in their joint statement: "After listening to the concerns of our signatories and with the JPC's member needs in mind, both organizations have decided to offer a waiver for commercial digital low budget productions."

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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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