September 18, 2015

Advertising Law News & Analysis - September 18, 2015

5 min


FTC Clubs Green Seals

The Federal Trade Commission (FTC) loves to pick over third-party certifications and endorsements relating to environmental or "green" attributes with a fine-tooth comb, write Venable attorneys Amy Ralph Mudge, Randal M. Shaheen, and Laura Arredondo-Santisteban in a recent post to the firm's advertising law blog. Earlier this week, the FTC sent warning letters to five providers of environmental certification seals and 32 businesses for using environmental seals and certifications in ways that could be deceptive and violate the FTC's "Green Guides."

The warning letters acknowledged that certification seals can assure consumers that they are actually getting the environmental benefits they want, but the letters pointedly stated that without careful qualification of claims, seals and certifications pose a significant risk of deception because such claims can convey a wide range of meaning to consumers.

Read the full blog post here to learn more about the FTC's thoughts on seals.

Read the FTC's press release and warning letters.

Read the FTC's Green Guides.

Machinima Settlement Demonstrates Value of an Ounce of Prevention

It is clear the FTC is serious about enforcing its now not-so-new Testimonial and Endorsement Guides, write Venable attorneys Randal M. Shaheen and Laura Arredondo-Santisteban in a recent post to the firm's advertising law blog. The Commission's recent settlement with Machinima, a leading provider of video content about video games, related to an influencer campaign promoting Microsoft's Xbox One game console, left Machinima smarting with strict compliance and reporting obligations. Meanwhile, Microsoft and its advertising agency faced no action related to the campaign.

What made the difference? Shaheen and Arredondo-Santisteban write that the FTC declined to bring an action against Microsoft or its agency because both had policies in place that were designed to prevent the alleged practices and quickly took steps to remedy the situation once they became aware of the issue.

Read the blog post to learn how the FTC expects companies to handle "influencer" disclosures.

Read the FTC's Machinima press release.

Read the FTC's Testimonial and Endorsement Guides.

FDA Releases Menu Labeling Rule Draft Guidance

Last week, the U.S. Food and Drug Administration (FDA) issued its draft "Labeling Guide for Restaurants and Retail Establishments Selling Away-From-Home Foods—Part II." The draft guidance will help food services better understand the nutrition labeling requirements in the Agency's "Food Labeling: Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments" final rule, write Venable attorneys Ralph S. Tyler, Michelle C. Jackson, Heili Kim, John G. Moore, and Jonathan A. Havens in a recent client alert.

The draft guidance contains answers to many of the most frequent questions FDA has received from the industry. However, the authors write, it fails to address many of the final rule's most controversial elements.

Read the client alert to learn more about what the draft guidance does, and does not, contain.

Read the full text of the draft guidance.

Metadata: There's Litigation Gold in Them Hills

Metadata is the DNA of a document, writes Venable partner Douglas B. Mishkin in a recent post to the firm's Trade Secrets and Transitions blog. Litigation about trade secrets and non-compete/non-solicitation agreements frequently hinges on questions related to metadata because it contains information about the creation, maintenance, alteration, and deletion of files and can paint a clear picture of who did what and when.

Mishkin's post is the first in a four-part series intended to teach employers about metadata, and explain how it can be used offensively and defensively in employment litigation.

Read the full blog post to learn about the three types of metadata and how they can turn the tide in employment litigation.

Upcoming Events:


September 28-30 | New York, NY

Legal trends, FTC enforcement priorities, and breaking developments in advertising law will be topics of discussion at this year's annual National Advertising Division (NAD) and Children's Advertising Review Unit (CARU) conferences. Learn how to enhance your use of the advertising industry's self-regulatory forum and hear from Venable's Melissa Landau Steinman, who will be speaking at CARU on "The Business Behind In-App Purchases, Push Notifications and Interest-Based Advertising."

Join Venable for a networking reception.
Tuesday, September 29, 2015 | 6:00 p.m. - 8:00 p.m. ET | Atrio - Conrad Hotel NYC
Click here to RSVP.

Click here to learn more about NAD/CARU and to register to attend.


October 6-8 | Las Vegas, NV

ERA is celebrating 25 years of bringing together the top direct-response marketers and innovators in the industry. Venable's Po Yi will be featured on the panel "Using Digital to Make the Cash Register Ring" to discuss best practices for brand marketers who use mobile and digital media to market to consumers. Be sure to swing by Venable's booth, #815, to meet our team.

Click here to learn more about ERA D2C and to register to attend.

SupplySide West

October 7-8 | Las Vegas, NV

Venable will partner with KGK Synergize as co-sponsors at this year's SupplySide West. This conference focuses on the exploration, discovery, innovation, and marketing strategy around the development of finished consumer goods in the animal nutrition, beverage, cosmetics, dietary supplements, sports nutrition, food, and pharmaceutical industries. Venable's Andrew Pratt and Justin Pierce will host a VendorBrief on "Brand Integrity for Food & Ingredient Suppliers: Best Practices in Enforcement & Licensing." Be sure to visit us at booth #1845 for more information and to meet our team.

Click here to learn more about SupplySide West and to register to attend.