Retailers and service providers should take note: the Federal Trade Commission (FTC) is increasing its scrutiny of negative option marketing activity to combat unfair or deceptive practices related to subscriptions, memberships and other recurring-payment programs. The FTC issued today a notice of proposed rulemaking as part of its ongoing review of its 1973 Negative Option Rule—one of the primary guides for the FTC’s enforcement focus.
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How to Succeed in Environmental Marketing Claims
Environmental marketing claims often present something of a Catch-22—companies that are doing actual good for the environment deserve to reap the benefits of their efforts, and consumers deserve to know, while at the same time, heightened scrutiny from the Federal Trade Commission (FTC), the National Advertising Division (NAD), state regulators and the plaintiffs’ bar have made such claims increasingly risky.
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Court Orders Injunctive Relief Against Tech Company for Deceptive Advertising, Unfair Fee Practices
On August 9, the US District Court of Georgia ruled that the FTC had provided “broad and detailed evidence” for its allegations that a tech company and its CEO engaged in deceptive advertising and unfair fee practices in violation of Section 5 of the FTC Act. The FTC’s 2019 complaint alleged the defendants made deceptive representations to customers and charged hidden, unauthorized fees in connection with the company’s “fuel card” as well as through co-branded cards, to companies in the trucking and commercial fleet industry. The FTC’s factual allegations include the following: …
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CFPB’s New Interpretive Rule Sets Sights on Digital Marketing Vendors
On August 10, the CFPB issued an interpretive rule stating that digital marketing providers that are involved in the identification or selection of prospective customers or the selection or placement of content to affect consumer engagement including purchase or adoption behavior, are subject to the CFPB’s jurisdiction. The rule ostensibly clarifies the scope of companies that are “service providers” under the Consumer Financial Protection Act (“CFPA”) to include digital marketing providers, and thereby subjecting them to the CFPB’s authority to prohibit unfair, deceptive, abusive acts or practices (UDAAPs). …
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FTC Strengthens Advertising Guidelines Against Fake Reviews
The FTC is seeking public comment on proposed changes to its Endorsement Guides. These changes aim to strengthen the guidelines against advertisers posting falsely positive reviews or by manipulating reviews by suppressing negative ones.
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Thinking of Jumping on the NFT Bandwagon – Are you Prepared?
“NFT” was 2021’s word of the year. This isn’t too surprising—they’re everywhere! The market cap for NFT transactions jumped from roughly $400 million at the beginning of 2021 to over $7 billion by year’s end. What’s next and how can brands and other content creators leverage NFTs to bring value?
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Proposed Federal Legislation Seeks to Ban Targeted Advertising
Last week, Reps. Anna Eshoo (D-CA), Jan Schakowsky (D-IL) and Cory Booker (D-NJ) introduced the Banning Surveillance Advertising Act of 2022, a new bill that seeks to significantly restrict targeted advertising practices. The proposed legislation prohibits “advertising facilitators” (defined as entities who receive consideration for disseminating ads and collect or process personal information in connection with such dissemination) from targeting ads to individuals based on their personal information. In addition, the bill prohibits advertisers from targeting, or using an advertising facilitator to target, ads based on personal information that the advertiser obtained from a third party (i.e., anyone other…
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California Passes Sweeping Package of “Green” Bills
In October 2021, Governor Gavin Newsom signed into law a sweeping package of six bills aimed at reducing plastic waste, improving recycling efforts, and clarifying labeling standards for recyclables and compostables. These new laws will likely mean significant changes for many companies. They come at a time when multiple states are passing similar environmentally focused bills, signaling a renewed effort to promote recycling and regulate green advertising.
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FTC Signals Plan to Enforce Civil Penalties for Deceptive Endorsements
The FTC has sent a strong message to industry that it plans to hold companies responsible for using endorsements and customer testimonials that deceive consumers. The recent warning signals the FTC’s focus on fake reviews and endorsements and the agency’s intent to hold brands and advertising service providers accountable where necessary. The agency is paying particularly close attention to how brands communicate with customers through third party influencers on social media.
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FTC Cracks Down On Violations of Newly-Codified “Made in USA” Claims Rule
The Federal Trade Commission (“FTC”) recently settled an enforcement action against an advertiser for $753,000 for deceptive “Assembled in USA” product claims, the first such settlement following the FTC’s recent adoption of a new rule addressing unqualified “Made in USA” labeling claims. (See Made in USA Labeling Rule.)…
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CARU Revises its Guidelines to Address Increase in Online Media
The Children’s Advertising Review Unit (CARU) recently revised its children’s advertising guidelines to address the increased prevalence of online media directed to children. Of note, the guidelines now apply to content directed to children under 13 -in line with COPPA- rather than the previous applicability to children under 12.
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Florida Expands Telemarketing Laws
Florida recently amended its existing telemarketing laws, the Florida Do Not Call Act and the Florida Telemarketing Act. SB 1120, which went into effect July 1, 2021, imposes significant additional restrictions (and additional penalties for violations) on businesses making calls to Florida residents or Florida area codes.
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Seeking to Stop Deceptive ‘MADE IN USA’ Claims, the FTC Takes Action Against Brandnex
On January 25, 2021, President Joe Biden issued an Executive Order entitled “Ensuring the Future is Made in America by All of America’s Workers,” which directs a broad review and strengthening of governmental procurement and financial assistance policies and regulations which require or provide a preference for goods, products or materials produced in the United States.[1] While US content must be disclosed on automobiles, textile, wool and fur products sold in the US[2] and there is no law which requires a company to disclose the amount of US content or that a product is manufactured in the US,…
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Maryland Breaks Ground with Digital Advertising Tax
Overriding the governor’s veto of H.B. 732 (2020), the Maryland Senate on February 12, 2021 passed the nation’s first state tax on the digital advertising revenues pulled in by large companies. This development follows attempts by various other states like New York to directly regulate digital advertising and ecommerce services in new ways. We took a look at the Maryland bill to find out what advertisers need to know about its details and potential pitfalls.
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Is it Time to Make AR and VR a Part of Your Reality?
To date, there are over 1 billion augmented reality (“AR”) users and 171 million virtual reality (“VR”) users worldwide[1], a number that continues to increase as more industries turn to AR and VR to create immersive user experiences. Companies are offering stand-alone experiences that integrate augmented reality and virtual reality at events, such as Samsung and Live Nation’s broadcast of a VR Coldplay concert, as well as through in-store location based applications to encourage a seamless “try before you buy” approach, like Gucci’s AR apparel and accessories try-on app. AR and VR are shaping the future of advertising…
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Top 10 Diligence Issues in Lead Generation Mergers and Acquisitions
As anyone who has been through a corporate sale process can tell you, there is no such thing as a “standard” M&A transaction. Every deal is different and presents a unique set of challenges. This is especially true of transactions involving lead generation companies, which can be very different than businesses in other industries. Amongst other differences, companies in this space utilize a wide variety of customized commercial arrangements and are subject to numerous industry-specific regulatory requirements that buyers need to be aware of before making an investment in this space. In this article, we highlight the top 10 issues…
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