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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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Advertising, Marketing & Promotions Alert >> As More States Legalize Marijuana, Advertising and Marketing Regulations Come Into Focus - Alert - 02/14/2019

The advertising opportunities in this evolving industry are hard to ignore. However, with more opportunities comes more confusion, as state advertising regulations differ and the conflicts with the federal government become increasingly complicated. All participants in the industry, including media providers, marijuana brands, agencies and ad tech companies, need to analyze and evaluate their position and activities in the marketplace and those in California specifically need to comply with the new set of rules.

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Advertising, Marketing & Promotions Alert >> New York and Florida AGs Settle Charges with Seller of Fake Social Media Accounts and Engagements - Alert - 02/13/2019

Brands, marketers, and their agencies typically have the most to lose due to fraudulent social media traffic, in the form of wasted marketing dollars spent appealing to non-existent users. However, these settlements made clear that such practices also harm consumers and social media users.

In the past, the Federal Trade Commission has been the most active in policing fraudulent social media activity, but these settlements mark an increased willingness by state attorneys general to jump in the mix to protect consumers and may result in other states following New York and Florida’s lead in policing social media practices.

This enforcement action was announced within the first month of both Attorney General James’ and Attorney General Moody’s time in office, and offers a glimpse into both of their enforcement priorities.

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Advertising, Marketing & Promotions Alert >> Mastercard Announces New Free Trial Rules for Merchants - Alert - 02/06/2019

Companies that engage in negative option and subscription-based marketing must comply with various federal and state laws governing their practices. The proposed Mastercard rules will add another set of requirements to this compliance landscape. Marketers should prepare to comply with the Mastercard requirements once they are more clearly defined and go into effect (reportedly in April).

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Davis & Gilbert Elects a New Counsel - Press Release - 01/17/2019

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Advertising, Marketing & Promotions Alert >> The FTC's "Reasonable Basis" Standard Has Evolved for Disease Efficacy Claims - Alert - 01/09/2019

The FTC made it clear many times in 2018 that disease efficacy claims must be supported by competent and reliable scientific evidence, including human clinical testing, and that expert opinions will help guide the kind of human clinical testing and the number of RCTs that is acceptable to the FTC. Advertisers making disease efficacy claims in 2019 must make sure that they have the appropriate support in hand, before they go public with their campaigns.

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Advertising, Marketing & Promotions Alert >> Celebrity Endorsers of Initial Coin Offerings Settle with Securities and Exchange Commission - Alert - 12/20/2018

Celebrities not only need to comply with the FTC Endorsement Guides but also need to comply with the SEC’s disclosure rules when endorsing ICOs, or risk facing charges similar to those brought against Khaled and Mayweather.

These recent charges reflect the SEC’s concern around the increased popularity of cryptocurrency, the prevalence of fraud, and the importance of endorsement disclosures in this area.

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Advertising, Marketing & Promotions Alert >> New York Attorney General Reaches Record COPPA Settlement with AOL  - Alert - 12/10/2018

The AOL settlement – which requires AOL to pay the largest COPPA penalty ever to date – is the most recent instance in which the New York Attorney General’s Office has sought to enforce COPPA. While most ad tech industry members have long known that behavioral advertising cannot be targeted to children under 13, problems obviously still exist.

In announcing the settlement, New York Attorney General Barbara Underwood said her office “remains committed to protecting children online and will continue to hold accountable those who violate the law.” Her statement should serve as a forceful reminder of the need for operators, advertisers and ad networks to comply with COPPA or risk becoming the subject of an expensive enforcement action.

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Advertising, Marketing & Promotions Alert >> FTC Brings Action Against PR Agency and Publisher For Misleading Online Endorsements and Deceptively Formatted Advertising - Alert - 11/27/2018

The FTC is, once again, making it clear that all involved parties have a duty to comply with the FTC’s rules regarding paid endorsements and native advertising practices – and that it is equally willing to take action against agencies and publishers when they violate these rules. Failing to comply with these FTC requirements could expose an agency, the associated publisher, and even their owners, officers and directors in their individual capacities, to significant liability.

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Intellectual Property Litigation Alert >> When Does “Copying” a Photograph of a Building Constitute Copyright Infringement?  - Alert - 10/25/2018

Companies that use pre-existing photographs of buildings for reference in advertising or other materials may subject themselves to copyright infringement lawsuits. Even though there is generally no copyright protection for a building itself, there may be protection for a rendering of a building in the form of a photograph or illustration, and the use of that rendering for inspiration to create a new work, without obtaining authorization from the copyright owner, may lead to copyright infringement claims. Whenever a company seeks to use a pre-existing photograph or other rendering of a building or skyline as reference material, or an actual photograph, it should consult with legal counsel to help identify and avoid potential copyright, trademark and related issues.

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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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