November 13, 2015

Advertising Law News & Analysis - November 13, 2015

4 min


FTC Talks Zombies and the Digital Marketplace at BAA

If you're looking for an example of today's digital marketplace, look no further than The Walking Dead, said Federal Trade Commission (FTC) deputy director Daniel Kaufman during his keynote address at this week's Brand Activation Association (BAA) conference. Like the hit show, many brands spawn active social media engagement, leverage user-generated content, push users to apps, and at times blur the line between content and advertisement.

In a recent post to the firm's advertising law blog, Venable attorney Annie H. Lee recaps Kaufman's address. She writes that he conveyed that, like the zombies on the show, the fundamental consumer protection principles will never die, regardless of the media channel marketers use to convey their message.

Read Lee's blog post to learn more about Kaufman's BAA comments and whether #Glennisalive.

Naturally, You Have Questions about FDA's Call for Comments

On Monday, the U.S. Food and Drug Administration (FDA) issued a pre-publication version of its request for information on use of the term "natural" in the labeling of human food products, including dietary supplements. FDA's request is a bit of a surprise, write Venable attorneys Angel A. Garganta, Todd A. Harrison, Claudia A. Lewis, Amy Ralph Mudge, Michelle C. Jackson, and Jonathan A. Havens in a recent client alert. It was unexpected because the agency has previously declined to weigh in, even when requested by the courts, on whether and on the circumstances under which food products could be labeled "natural."

FDA issued the request, in part, because it received three Citizen Petitions asking the agency to define the term "natural" for use in food labeling and one Citizen Petition asking the agency to prohibit the term "natural" on food labels. There are also a large number of pending and threatened lawsuits over the "natural" issue, a litigation trend that would be impacted by the agency's formal adoption of a labeling standard. FDA will begin accepting public comments on November 12, 2015 but has not specified a closing date for the comment period.

Read the client alert to learn more about the questions FDA is seeking comments on, and how consumer comments will provide a window into how consumers view the term "natural."

"Show Me" State Shows No Mercy to Charity Telemarketers

Some businesses that operate in the nonprofit sector – particularly the charity sector – believe that laws similarly affecting the commercial sector do not apply to them. This, writes Venable attorney Eric S. Berman in a recent post to the firm's advertising law blog, can be a costly mistake.

He points to a recent lawsuit filed by the Missouri Attorney General against two telemarketing companies that solicit donations on behalf of charitable organizations in the state, and against the companies' co-owners. In the suit, the AG alleges that, among other things, the telemarketers violated the Telephone Consumer Protection Act, the Telephone Sales Rule, and Missouri state law and placed more than 25,000 calls to Missouri residents who were registered on the Missouri No-Call list.

The suit, Berman writes, reinforces the understanding that working with charities does not provide a "get out of jail free" card for marketers. It also is a good reminder that state attorneys general are at the front lines of law enforcement in the nonprofit sector. AGs have the authority to investigate and seek penalties for violations of both state and federal law. Moreover, they sometimes work hand in hand with the FTC on large-scale investigations and civil litigation against nonprofit organizations.

Read Berman's blog post to learn why the current legal environment is not very "charitable" to telemarketers and why that is unlikely to change anytime soon.


Affordable Care Act Reporting Deadlines Fast Approaching

Employers with Affordable Care Act (ACA) reporting obligations have less than three months left – the first deadlines hit on February 1, 2016 – to submit their reports, write Venable partners Thora A. Johnson and Juliana Reno in a recent client alert. One reporting obligation applies to large employers. Another applies to employers that sponsor self-funded plans that constitute minimum essential coverage.

Read the client alert to learn whether you are subject to one or both of these reporting obligations, how the two intersect, and the three most common types of questions employers have about the complicated forms.