On November 20, 2018, the United States Federal Trade Commission (“FTC”) proposed two FTC consent orders against two Georgia-based companies, Creaxion Corporation (“Creaxion”) and Inside Publications, LLC (“Inside”) and their principals[1] concerning the promotion and advertising of Health Pro Brands, Inc.’s new FIT Organic mosquito repellant during the 2016 Zika virus outbreak and allegations that they had misrepresented paid athletes’ endorsements as independent consumer opinions and commercial advertising as independent journalistic content.[2] The proposed FTC consent orders prohibited Creaxion and Inside from making any false representations in the future and required that they ensure all endorsers disclose all…

With the backdrop of November midterm elections and social media executives testifying before Congress about foreign efforts to interfere in U.S. democracy, California lawmakers are working on finalizing a new bill aimed to promote transparency and accountability around political advertisements on social media platforms. The “Social Media DISCLOSE Act” (the “Act”) seeks to build upon the existing California DISCLOSE Act, established in 2017, by extending political advertisement disclosure requirements to online social media platforms.…

The United States Securities and Exchange Commission (“SEC”) has indicated that nearly all initial coin offering (“ICO”) filings they have seen are securities offerings. Based on this expansive view, it may be more likely to find a Unicorn than an ICO that is not a securities offering. Ironically, a recent lawsuit was filed against Unikrn, a block-chain based betting platform, primarily focused on esports betting.…

It is no secret that the world of fashion is full of surprises. On Monday, June 4, 2018, Kim Kardashian West won the Council of Fashion Designer of America (“CFDA”) first-time Influencer Award and commented: “I’m kind of shocked I’m winning a fashion award when I’m naked most of the time.”[1] Fashion advertising and marketing rely more and more upon social media and influencers for the ability to connect with consumers in an authentic manner.[2] As a result, fashion models and celebrity influencers are in high demand. Now, a new group of unique model influencers are taking the…

Sponsorship rights are a critical component of the revenue stream for almost every major venue in the United States. Long-term sponsorship deals not only provide much of the funding for new venues to be built, but they also support the refurbishments that allow existing venues to retain tenants and attract short-term residents, such as concerts, sporting events and tournaments. Sponsorship spending in North America alone came to a staggering $23.1 billion in 2017, an increase from the 2016 figure of $22.3 billion. Most of this sponsorship cash flows to and from venues in major cities. One example out of many…

Digitally altered images of models have been a controversial advertising issue for decades. In Great Britain, the Advertising Standards Authority Ltd., which is the governing regulatory advertising body, in 2011 banned skincare advertisements featuring digitally altered images because the advertisements exaggerated the effects of the skincare and makeup products and were held to be misleading “per se.”[1] In France, as of October 1, 2017, “it [was] mandatory to use the label ‘retouched photo’ alongside any photo used for commercial purposes where the body of a model has been modified by image-editing software to either slim or flesh out her…

Prop 65 is a California law that requires California consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. As we reported in our Environmental Blog, new Prop 65 regulations go in to effect August 30, 2018, giving the government and opportunistic private parties new avenues to assert claims. If your products are sold in California, now is the time to evaluate whether you are in compliance with Prop 65. Don’t wait until August.…

The Federal Trade Commission recently released a Staff Report regarding consumer recognition of native and search advertising entitled “Blurred Lines”, summarizing its findings from its self-styled “exploratory research”. Unsurprisingly, the FTC concluded that the use of disclosures consistent with prior FTC guidance increased the likelihood that consumers would recognize online ads as ads.…

The Online Interest-Based Advertising Accountability Program recently warned that it will require interest-based video ads to provide transparency and control to viewers by April 1, 2018. The Accountability Program, a service of the Better Business Bureau that regulates online behavioral advertising, has previously enforced the Digital Advertising Alliance’s self-regulatory principles for interest-based advertising (DAA Principles) with respect to behavioral advertising across websites, mobile apps and across multiple devices associated with the same person, but it has refrained from enforcing the principles with respect to online video ads to allow the video ad marketplace to innovate and mature. Due to the…

On December 12, 2017, the FTC hosted a workshop to discuss informational injuries that consumers may suffer when their personal information is misused. Discussion topics included the types of informational injuries consumers suffer and business and consumer perspectives about costs, benefits and risks of collecting information.…

The 9th Circuit Court of Appeals ruled that a non-party online behavioral advertising firm could not benefit from the arbitration clause in the agreement between Verizon and its customers because it was not a party to that agreement.…

The U.S. Copyright Office is making changes to the Digital Millennium Copyright Act (DMCA) safe harbor agent registration process. The changes impact both new online service providers as well as existing online service providers who have already registered an agent. Read on for details about what you will need to do.…

In our previous blog post, “#CAUTION: FTC Ramps Up Enforcement of and Education on Social Media Influencer Disclosure Requirements,” we discussed a recent Federal Trade Commission (the “FTC”) settlement and the FTC’s increased focus on misleading advertising and endorsements on social media platforms. The complaint, brought by the FTC’s Bureau of Consumer Protection (“BCP”), was against two online gaming influencers, Trevor Martin (a/k/a TmarTn), Thomas Cassell (a/k/a TheSyndicateProject, Tom Syndicate, and Syndicate), and their corporation CSGOLotto, Inc. (“CSGOLotto”).  The BCP alleged that Martin and Cassell (1) did not disclose their ownership in CSGOLotto, (2) were paid to endorse the online…