February 09, 2012

Advertising News & Analysis - February 9, 2012

6 min


Venable Adds Pair of Nationally Known Advertising and Consumer Protection Attorneys, Launches Advertising Law Blog

Venable announced today that Randal M. Shaheen and Amy R. Mudge, two of the country’s leading practitioners of advertising and marketing law, have joined the firm as partners in its Washington office. Mr. Shaheen and Ms. Mudge have practiced together for 16 years and created one of the most widely followed blogs on advertising and consumer law issues. They will continue to blog about issues critical to advertising and consumer law in a new blog entitled www.allaboutadvertisinglaw.com.

The pair regularly represents leading brands in litigation and regulatory proceedings, including actions and investigations involving the Federal Trade Commission ("FTC"), Justice Department, state Attorneys General, and industry self-regulatory bodies such as the National Advertising Division of the Council of Better Business Bureaus.

Their clients have spanned multiple industries and have included a number of leading brands in soft drinks, rental cars, packaged foods, tobacco, pharmaceuticals, dietary supplements and other sectors, including major professional sports leagues. They have regularly advised clients on such issues as “Made in USA” labeling, marketing products to children, health and performance claims, weight loss and wellness investigations, green marketing, and the use of surveys in advertising and promotional materials.

Go here to read Venable's press release announcing the arrival of Shaheen and Mudge.

Go here to visit the blog.


Bone Marrow Registry, UMass Health Ventures Settle Improper Marketing Charges with Massachusetts, New Hampshire AGs

This week, the attorneys general of Massachusetts and New Hampshire separately announced settlements with Caitlin Raymond International Registry (“CRIR”) and UMass Memorial Health Ventures, Inc. (“UMMHV”) over marketing practices the organizations used over the past decade to increase donor registration. The settlements also addressed UMMHV’s billing practices for the required screening tests, which included not collecting insurance copays for insured clients and billing insurance companies as much as $4,500 for the screening test, which actually costs as little as $50 to administer, in order to collect the maximum payment possible.

The organizations’ marketing practices included using raffles of high-value items such as flat screen televisions, golf clubs and a tractor to drive participation in registration drives for the National Marrow Donor Program. The organizations also used fashion models wearing white lab coats bearing the “UMass Labs” insignia to staff recruitment drives at local malls, festivals and sporting venues. Lastly, the groups incentivized staff members to recruit individuals whose health insurance plans paid the most for the test.

Under the two agreements, the organizations will pay a total of more than $800,000 to settle the cases. The New Hampshire agreement requires that the organizations make fundamental changes in their recruitment practices, including discontinuing the use of the practice of raffles and models in connection with donor outreach events. In addition, the organizations must modify their donor consent form to provide clearer and more specific information and consent. The organizations must also bill insurance companies no more than $150 for the screening test and inform donors of the amount that will appear on their Explanation of Benefits form.

Go here to read the Massachusetts AG's press release.

Go here to read the New Hampshire AG’s press release, which includes links to the state’s request for preliminary injunction as well as the consent judgment.


FDA Reopens Public Comment Period on Direct-to-Consumer Marketing on Prescription Drugs

On January 26, the Food and Drug Administration ("FDA") announced that it was reopening the public comment period for its proposed rulemaking regarding direct-to-consumer marketing of prescription drugs via television and radio advertisements. The proposed rule was originally published in the Federal Register on March 29, 2010.

The proposed rule would implement a new requirement of the Federal Food, Drug, and Cosmetic Act that the major statement in direct-to-consumer television and radio advertisements disclosing the side effects and contraindications of an advertised prescription drug be presented in a clear, conspicuous, and neutral manner.

Interested parties may submit comments on the proposed rule to the FDA until February 26, 2012.

Go here to read the full text of the rule or to submit a comment.


FTC to Hold Workshop on Mobile Payments Technology

On April 26, 2012, the FTC will conduct a workshop to examine the use of mobile payments in the marketplace and how this emerging technology affects consumers. The event will address a wide range of issues, including the technology and business models used in mobile payments, consumer protection issues raised by mobile payments, and the experiences of other nations where mobile payments are more common.

The FTC is currently accepting public comments to aid in preparation for the workshop’s agenda. Electronic comments may be posted at https://ftcpublic.commentworks.com/ftc/mobilepayments.

Go here to view the FTC's press release about the event.



FTC Keeps a Keen Eye on Endorsements and Testimonials

In the latest edition of the DRMA Voice, Venable partner Gregory J. Sater explains why marketers and individuals endorsing products need to stop and consider compliance with the FTC’s Guides Concerning the Use of Endorsements and Testimonials before launching a campaign or posting an online review.


Go here to read Gregory Sater's column.

Recent Rulings Show Concepcion Case not a Magic Bullet in Class Actions

When the Supreme Court’s Concepcion decision came down last April, it was widely hailed as a life-altering victory for the class action defense bar – prompting many to declare that arbitration provisions in consumer contracts and employee handbooks would now insulate merchants and employers from class action litigation. However, Venable’s Thomas E. Gilbertsen and Michael P. Bracken explain in their recent white paper that two recent federal appeals court decisions demonstrate how arbitration provisions in consumer agreements and employment policies still trigger judicial scrutiny when interposed to defeat operation of class action rules.

Go here to read the white paper.

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.”

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