Advertising Law News & Analysis - October 22, 2015

5 min


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.


Judge Deletes Yahoo! TCPA Texting Class Action

In a big win for Yahoo!, the U.S. District Court for the Southern District of California denied certification of a putative class in a suit alleging that Yahoo! violated the Telephone Consumer Protection Act (TCPA). The litigation, write Venable attorneys Daniel S. Blynn and Samuel D. Boro in a recent post to Venable's advertising law blog, arose out of claims that Yahoo! spam-texted consumers by allowing its users to send text messages from a computer to a mobile phone.

While the merits of the claim have yet to be decided, the court held that class treatment was not the best method for resolving the case and denied class certification. All litigants face fact-dependent questions of what will be sufficient to form a class. Here, Yahoo! succeeded based on the plaintiffs' failure to show there was a workable means of ascertaining the class and because Yahoo! users provided express consent to receive text messages in a variety of ways.

Read the full blog post to learn more about the specific steps Yahoo! took that undermined the attempt at class certification.

Read the Judge's decision in the Yahoo! case.

Check out Venable's compilation of recent TCPA class action cases.

Survey Says: Look Both Ways with Surveys

The art of the consumer survey has changed tremendously over the past 50 years, writes Venable attorney Tyler Hale in a recent post to the firm's advertising law blog. During a session at the 2015 National Advertising Division (NAD) conference, NAD staff attorneys, advertising lawyers, and survey experts weighed in on the state of the consumer survey. They made it clear, Hale writes, that the ease and advantages of online surveys do not excuse survey experts from keeping in mind the same concerns that have undergirded survey evidence since the very beginning.

Read Hale's blog post to learn why online surveys concern NAD and what best practices apply across all types of consumer surveys.

Court Blows Raspberries at FTC's Bayer Contempt Case

The Federal Trade Commission (FTC) suffered a resounding defeat late last month in the U.S. District Court in New Jersey in its effort to hold Bayer Corporation in contempt of 2007 and 1991 court orders that required the company to use competent and reliable scientific evidence for any future dietary supplement claims. The current litigation was based on the FTC's allegation that Bayer made unsubstantiated representations for its Phillips' Colon Health probiotic.

The court rejected the FTC's reasoning for several reasons, writes Venable partner Leonard L. Gordon in a recent post to the firm's advertising law blog. FTC staff routinely dismiss many of the arguments adopted by the court in Bayer during the course of investigations involving dietary supplements. One can hope this opinion gives staff pause in their position that FTC's views regarding science and ad interpretation are the only permissible views.

Read Gordon's blog post to learn more about the FTC's arguments and the reasons the Bayer court rejected them.

Keep Your Self-Regulatory Options Open

The Advertising Self-Regulatory Council operates several self-regulatory programs, writes Venable partner Randal M. Shaheen in a recent post to Venable's advertising law blog. The Children's Advertising Review Unit (CARU) regulates marketing to children, the Electronic Retailing Self-Regulation Program (ERSP) regulates companies that market and sell their products electronically, and NAD oversees most traditional national advertisers. Traditionally these programs have been seen as distinct, but there is some overlap between ERSP and NAD. Shaheen writes that some key differences in the procedures at the two entities give marketers and their legal counsel reason to think strategically about venue selection for a self-regulatory challenge.

Read Shaheen's blog post to learn more about the differences between the ERSP and NAD processes.

Metadata: The Sword and the Shield

A few issues ago, we featured a post about the use of metadata – electronically stored information about the creation, maintenance, alteration, and deletion of computer files – in employment litigation. That post, by Venable partner Douglas B. Mishkin, was the first in a four-part series on the firm's Trade Secrets and Transitions blog.

In the second part of the series, Mishkin discusses how employers should handle metadata to protect against claims of misappropriation of trade secrets or proprietary information.

In the third part, he discusses how companies can use metadata to establish that an employee or competitor has stolen proprietary information.

Upcoming Events:

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.


November 4-5 | 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 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. Panels will be diving into some of the hottest topics in digital and social media; native advertising; domestic and global privacy; sweepstakes, contests, and games; Intellectual Property; Lanham Act and class action litigation; federal, state, and self-regulatory enforcement; and more.

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.