Advertising Law News & Analysis - October 29, 2015

5 min


The Tools in Your Kit Just Got Sharper

Venable launched the fourth edition of its popular Advertising Law Tool Kit this month. 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.


Is FTC Commissioners' Green Claims Consensus Disintegrating?

Earlier this month, the FTC Commissioners issued an opinion and Final Order, finding that ECM BioFilms, Inc. (ECM) made false, misleading, and unsubstantiated environmental claims about its chemical additive product, which, ECM claimed, makes plastics biodegradable. The Complaint also alleged that the company's actions resulted in its manufacturers making deceptive claims to consumers about finished products containing ECM's additive.

In a recent post to the Venable's advertising law blog, partner Leonard L. Gordon writes that what actually makes this opinion notable is the disagreement among the Commissioners about what claims can be inferred from an unqualified claim that a product is biodegradable. The reliability of a relatively new survey methodology, and what the "significant minority" language in the FTC's Policy Statement on Deception means in the context of extrinsic evidence, are also compelling issues, he writes.

Read Gordon's full blog post to learn how the ECM case may lay out a roadmap for challenging the FTC when they say your ads make implied claims that you didn’t intend to make.

Read the FTC's 2013 ECM complaint here, as well as the opinion and final order.

Does Your Social Media Policy Cover All the Angles?

Your employees are on social media. They're using it while they work in your stores, they're talking about your brand, and their words have tremendous power to help or hurt your business. A company-wide social media policy is a good way to ensure your employees use social media in a responsible way, write Venable partners Douglas B. Mishkin and Po Yi in a recent post to the firm's advertising law blog. But how your social media policy regulates what employees may say requires a tricky balancing act. Nothing illustrates the inherent tension in a retailer's social media policy better than the intersection of Federal Trade Commission (FTC) and Department of Labor regulations.

Read the full blog post to learn how to avoid trouble with employee social media policies.

FCC Drops the Dime on Phone Complaints

On October 21, 2015, the Federal Communications Commission (FCC) issued a press release announcing that it will begin releasing the robocall and telemarketing consumer complaint data it receives on a weekly basis. The Commission's stated purpose for the change is "to help developers build and improve 'do-not-disturb' technologies that allow consumers to block or filter unwanted calls and texts." However, writes Venable attorney Daniel S. Blynn in a recent post to Venable's advertising law blog, the ramifications of releasing the data are clear. This data will be red meat for the plaintiffs' bar, and there will likely be a significant uptick in Telephone Consumer Protection Act (TCPA) class action complaint filings across the country.

Telemarketers, Blynn writes, should ensure that their telemarketing compliance programs are strong, and brace for the coming storm.

Read Blynn's blog post to learn what data the FCC will release and how plaintiffs' attorneys are likely to use it.

Destroying Metadata: Relax. Don't Do It.

Over the past few weeks, we've highlighted a series on Venable's Trade Secrets and Transitions Blog discussing the defensive and offensive use of metadata, pieces of data that provide information about the creation and editing of electronic files, in trade secret litigation.

Because of the power of metadata, you may be wondering why someone hasn't figured out a way to destroy it, write Venable partners Douglas B. Mishkin and Douglas C. Proxmire in the final installment of the four-part series. The answer is that metadata can be destroyed, and the tools to do so are readily available. However, the authors write, the cover-up can easily be worse than the crime.

Read the post to learn why contemplating destroying metadata may be the worst idea you've ever had.

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 Steinman, Amy Mudge, Len Gordon, and Randy Shaheen 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."

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