Advertising Law News & Analysis - October 15, 2015

6 min

Announcement:

The Tools in Your Kit Just Got Sharper

This week, Venable launched the fourth edition of its popular Advertising Law Tool Kit. As in previous editions, it covers common advertising law issues, such as endorsements and testimonials, brand protection, and mitigating class action exposure. And the concise guide is packed with insight, best practices, and checklists. Unlike previous editions, the new ebook version of the Tool Kit allows users to customize their copy by bookmarking frequently used sections and making personal annotations. The Tool Kit is accessible from any computer, tablet, or smart phone connected to the Internet. It can also be printed or downloaded to a device's desktop for offline access.

Get your own copy of Venable's Advertising Law Tool Kit today.


News:

Former White House Senior Director for Cybersecurity Joins Venable

Last week, Venable announced that Ari Schwartz, Senior Director for Cybersecurity at the White House, will join the firm as Managing Director of Cybersecurity Services.

Schwartz is a well-known leader in the cybersecurity community, having played a major role in formulating the Obama Administration's cybersecurity and technology policy. In his tenure at the White House, he has been responsible for coordinating all network defense cybersecurity policy, including critical infrastructure protection, federal network protection, supply-chain efforts, cybersecurity standards promotion, and information sharing.

In his role as the Managing Director of Cybersecurity Services, Schwartz will provide cybersecurity consulting services to firm clients, assisting organizations with understanding and development of risk management strategies, including implementation of the White House's Cybersecurity Framework and other planning tools to help minimize risk.

Read Venable's press release to learn more about the experience Schwartz brings to Venable's Privacy and Data Security Practice Group.


Analysis:

FTC Slaps Marketer for Gagging Consumers

In September, the Federal Trade Commission (FTC) filed suit against a marketer for making unsubstantiated weight-loss claims for a supplement that promised weight-loss results that would be similar to those of gastric bypass surgery – but without the surgery. While this may sound like another ho-hum weight loss case, writes Venable partner Gregory J. Sater in the October edition of the DRMA Voice, it isn't.

What makes this case unique is that the marketer's "terms and conditions" contained a non-disparagement clause that required that customers not say anything negative about the product. The document also stated that consumers had received a discount but would become liable for the alleged full price of the product if they violated the non-disparagement clause. At the same time, the marketer induced customers to send "Success Videos" to the company, in return for getting 50% of their money back. Needless to say, the FTC was not amused by either practice.

Read Sater's article to learn more about the FTC's thoughts on attempts to "gag" consumers.

FTC, FDA Don't Always See Eye to Eye

The FTC and the Food and Drug Administration (FDA) share jurisdiction over claims for foods, cosmetics, and over-the-counter drugs. The agencies have even written a protocol which sets forth where each should defer to the other. For the most part, write Venable partners Amy Ralph Mudge and Randal M. Shaheen in a recent post to the firm's advertising law blog, the two agencies coexist in relative harmony. However, a recent warning letter sent by FDA to several tobacco manufacturers is a great example of how advertisers sometimes get whipsawed between the two agencies.

Read the blog post to learn what can happen when the FTC zigs and the FDA zags.

Rule Changes Announced at NAD Law Conference

At the recent NAD/CARU (National Advertising Division/Children's Advertising Review Unit) Annual Advertising Law Conference, there was big news about significant changes to the NAD challenge and review process. In a recent post to the firm's advertising law blog, Venable partner Amy Ralph Mudge writes that the changes arose from a review of the self-regulatory process and a resulting report created through the American Bar Association's Antitrust Section and its Consumer Protection and Alternative Disputes and Litigation Committees. While the report overwhelmingly concluded that the NAD process generally works very well, there were some findings and recommendations for change.

Read the blog post to learn what changes are in store for the NAD process.


Upcoming Events:

ACI – Digital Advertising Compliance: Social Media, Sweepstakes & Promotions | Women in Marketing and Advertising Law Conference

October 20-22 | New York, NY

ACI is hosting the annual Digital Advertising Compliance: Social Media, Sweepstakes & Promotions conference at the Carlton Hotel. Venable's Melissa Steinman will be discussing several new topics to increase your understanding of the legal and regulatory challenges impacting digital advertising, sweepstakes, and promotions.

Click here to learn more about ACI Digital Advertising Compliance and to register to attend.

ACI is also pleased to present its inaugural Women Leaders in Advertising and Marketing Law conference, a forum aimed at promoting woman-to-woman networking and mentorship and facilitating high-level discussion of the challenges and opportunities facing like-minded women in the advertising and marketing legal community. Tailored to empower women, this is a unique opportunity to network with and engage in candid discussion with leaders from the FTC, leading brands, and ad agencies, including AdRoll, L'Oréal, HBO, Macy's, DEFY Media, Facebook, B2R Finance, MasterCard, Tapjoy, and others.

Click here to learn more about Women Leaders in Marketing and Advertising Law and to register to attend.

CRN 2015

October 21-24 | Palm Springs, CA

Join Venable's Claudia Lewis who will be facilitating various sessions throughout CRN's three-day event. The conference will combine networking opportunities with hot-topic sessions on business, science, regulatory issues, marketing—and more—offering a forward-looking, inspirational view.

Click here to learn more about CRN and to register to attend.

Lead Generation FTC Workshop

October 30 | Constitution Center, Washington, D.C.

Join Venable's Jonathan Pompan at the upcoming FTC Workshop, Follow the Lead, to explore the growing use of online lead generation in various industries, including consumer lending and education.

Click here to learn more about Follow the Lead and to register to attend.

ad:tech

November 4 | New York, NY

ad:tech brings together the marketing, technology, and media communities to share new ways of thinking, build strong partnerships, and define new strategies to address the key industry challenges and opportunities. Visit Venable at booth #510.

Click here to learn more about ad:tech NY and to register to attend.

BAA's 37th Marketing Law Conference

November 9-11 | Chicago, IL

Join the nation's leading brands and law firms at the industry's most important marketing and advertising law conference. Topics include a deep dive into multiple aspects of digital and social media, consumer reviews, on-time behavioral advertising, big data, native advertising, branded entertainment, COPPA, SAG-AFTRA, celebrity talent and sponsorship deals, all aspects of domestic and global privacy, sweepstakes, contests and games, gift/loyalty cards, FTC/Keynote, regulated industries (alcoholic beverages etc.), copyright, trademark and patents, Lanham Act, class actions, COPPA/CARU and FCC, FDA, CFPB and State AG enforcement, sports deals, ambush marketing, and gamification. Venable's Melissa Steiman and Amy Mudge will be moderating two panels: "The Tricky Business and Law of Loyalty Programs – Gift & Stored Value Cards" and "Defending Against Actual/Potential FTC and Other Regulatory Investigations," respectively.

Click here to learn more about BAA and to register to attend.