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Advertising, Marketing & Promotions Alert >> Suit Challenges Jos. A. Bank Clothiers' "Up to" Percent Off Advertising - Alert - 03/28/2017

The ultimate outcome of the action against Jos. A. Bank remains to be seen. The lawsuit, however, should serve as a reminder to advertisers to carefully consider state laws when advertising discounts or price ranges. While using a range, such as "30-70% off select merchandise," could help to lower litigation risk, it may not be a silver bullet if state statutes are not otherwise met (for example, offering a certain percentage of merchandise at the highest end of the savings range). The other factor to consider here is 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 >> 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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Advertising, Marketing & Promotions Alert >> NAD Action Requiring the Kardashians and Fit Tea to Disclose Their Connections in Social Media Posts - Alert - 02/13/2017

This NAD case should serve as a reminder that influencers and other endorsers must disclose their material connections on Twitter, Instagram and other social media platforms. This is particularly important when the influencers are well-known celebrities as consumers are likely to afford more weight to their endorsements. This case also serves as a reminder that the NAD has authority to bring cases for violations of the FTC Endorsement Guides, which means that, even if the FTC does not bring an action against an advertiser for failing to disclose material connections, the NAD can bring an action on its own.

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Advertising, Marketing & Promotions Alert >> California Alleges Four of the Largest U.S. Retailers Engage in 'False Reference Pricing' - Alert - 01/30/2017

The California actions highlight the importance of ensuring accurate pricing statements are presented in print and online ads. That these suits were filed in California is not particularly surprising, given the state’s history of aggressive protection of consumers, and suggests that, this year, the state may become even more active in challenging what it perceives to be unfair competition and false advertising by retail companies and others, especially at the local level. While retailers may have thought the recent spate of class actions and other regulatory enforcement of price advertising may have been the last word, it appears that this issue is not going away any time soon.

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PRNewsPro // Fit To Be Teed - Press Mention - 01/30/2017

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Advertising, Marketing & Promotions Alert >> Legal Marijuana: What You Need to Know to Legally Advertise to This Budding Economy - Alert - 01/12/2017

Marketers, producers and their agencies should be aware of the variety of state and federal legal issues presented by marijuana advertising, packaging and sale. And of course, any substantial policy changes from the incoming Trump administration could have a dramatic impact on the nascent industry. While seeking to capitalize on a new market opportunity, parsing through these issues on a campaign-by-campaign basis will be critical to minimizing risk in an evolving environment.

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Advertising, Marketing & Promotions Alert >> Staples Settles Consumer Class Action Over Deceptive Rewards Program Practices - Alert - 01/05/2017

This action and settlement serve as a good reminder to companies and retailers to establish robust terms that clearly describe the manner in which members will receive rewards in return for specific actions, and to ensure that all advertising claims and representations align with such terms, so that consumers can make informed purchasing decisions.

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Advertising, Marketing & Promotions Alert >> New York Attorney General Settles With MedRite and Carmel Over Paid Online Consumer Reviews - Alert - 12/12/2016

The New York State Office of the Attorney General has made clear that it will continue prosecuting businesses that incentivize positive reviews without adequate disclosure, and that it will consult the FTC Endorsement Guides in interpreting New York state consumer protection laws. Regardless of how the changing political climate may affect the FTC’s future enforcement priorities, advertisers and brands across industries can expect state attorneys general to continue enforcing both state and federal consumer protection laws as they apply to online reviews.

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Advertising, Marketing & Promotions Alert >> Gambling and Lottery Risks Are Highlighted by New York City Marathon Lawsuit and Settlement - Alert - 12/07/2016

We can expect more litigation in the coming years concerning whether a business practice is or is not illegal gambling or a lottery. Therefore, all companies and organizations should take the lottery and sweepstakes laws into account when structuring the distribution of anything of value based on chance.

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PRNewsPRO // Influencer Ban? Not. - Press Mention - 10/31/2016

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Advertising, Marketing & Promotions Alert >> Regulators and Watchdogs Continue to Focus on Disclosure Obligations - Alert - 10/18/2016

As of yet, the FTC has taken no specific action against any of the Kardashians or Jenner types, but it is surely keeping a close eye on this development. Typically, as noted, when a paid influencer fails to make appropriate advertising disclosures, the FTC directs its enforcement actions toward the sponsoring advertiser, rather than the influencer individually – but this may herald a shift in that approach. Regardless, these developments show that regulators continue to be highly focused on disclosure obligations in all forms of paid advertising online and in new media – and advertising agencies, advertisers, publishers, media companies, and now perhaps even their influencers will need to stay on top of these obligations to ensure they are not the next target.

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Advertising, Marketing & Promotions Alert >> Second Circuit Affirms Ruling Holding Affiliate Marketing Network Liable for Its Affiliates' False Claims - Alert - 10/12/2016

Affiliate networks need to be aware that they can be held liable for the acts of their affiliates – even if they do not create the content used by such affiliates. Further, the FTC's position that one party in the online advertising ecosystem can be liable for content provided by another party due to the level of control should be an issue that all interactive companies should consider.

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PRNews // A Second Helping of PewDiePie? - Press Mention - 08/22/2016

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Litigation Alert >> Internet Retailers Beware: NJ Truth-in-Consumer Contract, Warranty and Notice Act Impacts Online Terms and Conditions - Alert - 07/21/2016

New Jersey’s TCCWNA allows consumers to recover damages or civil penalties from retailers who use terms and conditions that violate the consumers’ clearly established legal rights. With the New Jersey courts’ generally broad, consumer-friendly construction of this act, and a statutory penalty of $100 per violation regardless of whether the consumer has suffered any actual harm, the act increasingly has become a favorite among plaintiffs’ class action counsel. Online retailers should actively review their terms and conditions, both to ensure compliance with New Jersey law and to be certain that those terms are constructed so as to afford the maximum protection available against these class action claims.

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Advertising, Marketing & Promotions Alert >> FTC’s First COPPA Action Against Mobile Ad Network Highlights Risks for Operators As Well - Alert - 07/11/2016

During the past few years, the FTC has been stressing that its enforcement priorities would include mobile devices, children’s information, and new technologies and tracking practices. The FTC’s action against InMobi brings these priorities to life.

Overall, the action serves as a reminder that companies – both operators and ad networks themselves – need to respect the data collection preferences expressed by consumers and adhere to representations in their privacy policies, as it is not enough to profess COPPA compliance in a privacy policy – companies must be COPPA compliant. Companies should implement procedures and controls to ensure that all representations made to consumers, and the consumers’ expressed preferences, are honored.

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Advertising, Marketing & Promotions Alert >> Self-Regulatory Principles Applied for First Time to Mobile Apps and Discussed at DAA and ASRC Events - Alert - 05/19/2016

As both these enforcement actions and regulators’ recent remarks make clear, mobile apps and other emerging technologies are now subject to enforcement actions for failing to comply with the OBA Principles. All parties involved in IBA, whether on websites, through mobile devices or with cross-device tracking, should carefully examine their compliance with the OBA Principles, particularly if their apps and websites are directed to children.

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Advertising, Marketing & Promotions Alert >> FDA Issues Menu-Labeling Guide for Restaurants - Alert - 05/17/2016

Restaurants, retailers and companies that own retail establishments have been living with the FDA’s rule requiring the listing of calorie information on menus and menu boards for almost two years. They now face a substantial expansion of menu listing requirements that not only address what information must be posted but also regulate where it would have to appear. The extent to which the new requirements are manageable will depend in large part on how the FDA responds to comments on the guide, which it is welcoming. Davis & Gilbert is available to prepare and deliver comments to the FDA on clients’ behalf.

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Advertising, Marketing & Promotions Alert >> SAG-AFTRA Renegotiates Commercials Contract - Alert - 05/12/2016

The newly renegotiated SAG-AFTRA Commercials Contract increases talent rates overall, but also addresses in some fashion the concerns of signatory advertising agencies and advertisers that they are at a competitive disadvantage when paying SAG-AFTRA Commercials Contract rates to talent for digital content work and to “real” people in non-scripted commercials. That the 2016 Memorandum of Agreement also clarifies and tightens up a key aspect of the definition of a “commercial” for digital use may, however, telegraph concern by SAG-AFTRA that signatory agencies and advertisers will continue to strive to find ways to produce those “commercials” in a manner or format that is not covered under the SAG-AFTRA Commercials Contract. It also suggests that more work may need to be done by both the JPC and SAG-AFTRA in arriving at a talent payment model that adequately reflects the increased demand from marketers for digital content, which shows no signs of slowing down.

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Advertising, Marketing & Promotions Alert >> Amazon Found Liable for Billing Parents for Children’s Unauthorized In-App Charges - Alert - 05/04/2016

The court’s decision should serve as a reminder of the importance of ensuring clear and conspicuous disclosure of billing practices, particularly when the charges are incurred by children, and the importance of ensuring appropriate parental controls of in-app purchases directed to children. The FTC will continue to protect against the unauthorized billing of parents for in-app purchases made by their children, particularly now that a federal court has agreed that such conduct constitutes an unfair practice in violation of the law.

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Advertising, Marketing & Promotions Alert >> 'All Natural' Claims Challenged by FTC; Four Companies Settle and One Is Charged - Alert - 05/02/2016

While these actions represent the first settlements by the FTC in a controversial area of the law, it is clear that the agency views "all natural" and "100% natural" claims as meaning that products have no artificial ingredients or chemicals. The FTC's charges and proposed settlements in these cases should serve as a reminder to advertisers about the need for care when making "all natural" claims.



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