February 16, 2012

Advertising News & Analysis - February 16, 2012

5 min


FCC Approves Rougher Rules for Robocalls, Makes Other Rule Changes


The Federal Communications Commission ("FCC") on Wednesday approved significant changes to its rules regarding telemarketing calls. Under the amendments, the agency’s rules governing telemarketing “robocalls” require prior express written consent for all such calls to wireless numbers and residential landlines, regardless of whether the calls are to consumers with whom the marketer has a business relationship. Robocalls refer to calls made using an autodialer or artificial or prerecorded voice. The FCC also adopted rules requiring that marketers provide an automated, interactive opt-out mechanism for telemarketing robocalls, which would allow a consumer to opt out of receiving future calls immediately during a robocall.

In addition, the FCC revised its rules to adopt a “per-calling-campaign” standard for measuring the maximum percentage of live telemarketing sales calls that a telemarketer may lawfully drop or “abandon” as a result of the use of autodialing software or other equipment. Lastly, the revised rules exempt from the rules’ requirements prerecorded calls to residential lines made by health care-related entities governed by the Health Insurance Portability and Accountability Act of 1996.


Go here to read the FCC’s Report and Order regarding the approved rule amendments.


FTC Calls Disclosures for Kids’ Apps “Disappointing”


On February 16, The Federal Trade Commission (“FTC”) released a staff report on the data collection practices of mobile applications, or apps, targeted at children. According to the report, “app stores” and the developers of “apps” both fail to provide parents with sufficient information to determine what data is being collected from children using the app, how that data is shared, and who has access to that data.

The report, which focuses on the Apple App Store and the Android Market, the two largest mobile app marketplaces, notes the general lack of information available to parents prior to downloading a mobile app for their children. It calls on the industry to provide greater transparency about apps’ data practices and states "in most instances, staff was unable to determine from the information on the app store page or the developer's landing page whether an app collected any data, let alone the type of data collected [and] the purpose for such collection…”

The FTC press release calls out three recommendations from the report:

  • All members of the "kids app ecosystem" – the stores, developers and third parties providing services – should play an active role in providing key information to parents;
  • App developers should provide data practices information in simple and short disclosures. They also should disclose whether the app connects with social media, and whether it contains ads. Third parties that collect data also should disclose their privacy practices; and
  • App stores also should take responsibility for ensuring that parents have basic information. "As gatekeepers of the app marketplace, the app stores should do more." The report notes that the stores provide architecture for sharing pricing and category data, and should be able to provide a way for developers to provide information about their data collection and sharing practices.


In addition, the press release mentions that during the next six months, Commission staff would conduct a review to determine whether some mobile apps are violating the Children's Online Privacy Protection Rule. It also announced plans to host a public workshop in 2012, in conjunction with its efforts to update the FTC's "Dot Com Disclosure" guide, about how to provide effective online disclosures.


Go here to read the FTC’s press release and download a copy of the report.

NAD Decides Instaflex Glucosamine Joint Claims Properly Substantiated


A recent decision by the National Advertising Division of the Council of Better Business Bureaus (“NAD”) agreed with marketer Digital Direct that claims made for Instaflex, a joint health dietary supplement containing Glucosamine and other ingredients, are supported by well-designed scientific studies of the product’s four active ingredients.

Go here to read coverage of the decision in Nutraingredients USA.



Venturing into Ambush Marketing and Protecting Sponsorships Requires Careful Planning

Dutch Beer Bavaria is famous for its orange-clad ambush marketing campaigns at prominent sporting events such as the World Cup. The United States Olympic Committee and the nation’s leading professional sports leagues are equally well known for the measures those groups take to protect their valuable brands. Venable attorney Jonathan L. Pompan outlines the issues that potential sponsors, and potential ambush marketers, should consider before attempting to connect their brand to a sporting event.

Go here to read Jonathan Pompan’s article.



Upcoming Events

"Significant Changes in Advertising Law 2012", LIVE Webcast for The Knowledge Group
February 24, 2012
Venable is a proud sponsor of this event. Join us for a panel discussion featuring Roger A. Colaizzi on February 24 at 12 p.m. (EST). The online panel will cover changing legal issues advertisers face this year including new privacy protocols, current regulatory updates and legal compliance with privacy laws.

ERA Great Ideas Summit – Miami
February 27-29, 2012
Venable is a proud sponsor of this year’s ERA Great Ideas Summit in Miami. Please visit us at our booth, or if you would like to meet with one of our attorneys while you’re at the show, please send an email to Charles Wilkins at cfwilkins@Venable.com.

Natural Products Expo West / Engredea 2012
March 9-11, 2012
Visit with Venable’s Dietary Supplements, Food & Cosmetics attorneys during this co-located exposition. Stop by our booth (No. 246 in Hall A). Michelle Jackson and Todd A. Harrison will present a case study on "Claiming to be the Best: Understanding How to Substantiate Your Claims" on Friday, March 9 at 1:30 p.m. (PST) in Hall A.

International Home and Housewares Show 2012 - Chicago
March 10-13, 2012
Join Jeffrey D. Knowles and Roger A. Colaizzi for a presentation that will answer the question “Can You Substantiate That? Alerting Marketers to Increasing FTC Scrutiny” on March 11 at 11:30 a.m. (CST) in Lakeside Innovation Theater, E350.

American Conference Institute's Food & Beverage Marketing & Advertising Law Conference
March 19-20, 2012
Venable is a proud sponsor of ACI’s Food & Beverage Marketing & Advertising Law Conference. Join Todd A. Harrison for a presentation on “Pom and Its Progeny – Examining Development Case Law Addressing Evolving FTC Requirements for Health-Related Claims” and Claudia Lewis for a “Deep Dive into Food and Beverage Claim Substantiation.”

Click here to subscribe to Venable's Advertising and Marketing RSS feed and receive the Venable team's insight and analysis as soon as it is posted.