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.
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.
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.
Copyright >> Courts, Not Congress, Are Resolving Copyright Issues - Alert - 04/11/2017
Entertainment >> Can Anyone Be Happy Together After Sirius XM Copyright Decision? - Alert - 04/11/2017
FTC/Regulatory and State >> FTC Renews Focus On Efficacy And Safety Claims - Alert - 04/11/2017
Influencer Campaigns >> Influencer Campaigns See Increased Scrutiny - Alert - 04/11/2017
Legal Marijuana >> Legal Marijuana's Uncertain Path Forward - Alert - 04/11/2017
Native Advertising >> Native Advertising Faces Growing Regulatory Focus - Alert - 04/11/2017
Patents >> Patent Troll Cases Unlikely To Drop Significantly - Alert - 04/11/2017
Retail >> Retail Practices Are In Vogue For Regulators, and Class Action Lawyers - Alert - 04/11/2017
Sports >> The Playing Field Remains Unsettled for Daily Fantasy Sports - Alert - 04/11/2017
Trademark >> "Nominative Fair Use" Defense May Enable Use of Another's Trademark - Alert - 04/11/2017
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.
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.
AdAge: What L.A.'s Prcing Suit Against Major Retailers Means - Published Article - 02/27/2017
FTC Watch // Pahl Replaces Rich as Guard Changes at Bureau of Consumer Protection - Press Mention - 02/17/2017
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.
Law360 // FTC's New Bureau Head Likely To Keep Up Privacy Pressure - Press Mention - 02/10/2017
AdExchanger.com // FTC Vet Thomas Pahl To Lead The FTC's Consumer Protection Arm - Press Mention - 02/09/2017
Bloomberg BNA // Privacy & Security Pros: Top FTC Official Jessica Rich to Leave, 'Clean Slate' Emerging?" - Press Mention - 02/08/2017
Nutra Ingredients USA // Expert Unsure GNC Can Make Case Over Rejected Ad - Press Mention - 02/07/2017
AdExchanger.com // Jessica Rich, Advertising's Top Cop, Steps Down From The FTC - Press Mention - 02/07/2017
Nutra Ingredients USA // Expert Unsure GNC Can Make Case Over Rejected Ad - Press Mention - 02/07/2017
AdExchanger // Jessica Rich, Advertising's Top Cop, Steps Down From the FTC - Press Mention - 02/07/2017
Advertising Age // What GNC's Feud With Fox Means for Future of Super Bowl Advertisers - Press Mention - 02/06/2017
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.
Law360 // Ramirez Leaves An FTC Ready To Lead Privacy Enforcement - Press Mention - 01/13/2017
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.
PRNewsPro // Data, Fake News, Mobility, Recruitment & Retention Top of Mind for PR Pros in 2017 - Press Mention - 01/09/2017
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.
BloombergBNA Privacy & Data Security Law Report // FTC Should Step Up Smart Toys Privacy Enforcement - Press Mention - 12/15/2016
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.
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.
BloombergBNA Privacy Law Watch //Web Toys Spied on Children, Privacy Groups Tell FTC - Press Mention - 12/06/2016
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.
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.