Advertising Law News & Analysis - December 10, 2015

4 min

Happy Holidays!

This email is the last 2015 edition of Advertising Law News and Analysis. While we know you are already lamenting the Thursday afternoon insights you'll miss over the next few weeks, we hope the joys of your long holiday weekends will more than make up for it. We look forward to returning to your inbox on January 7. Until then, visit to stay abreast of developments.

All of us here at Venable wish you, your family, friends, and colleagues a joyous and safe holiday season!


California Adds Two Common Supplement Ingredients to Prop 65 List

Last week, the California Office of Environmental Health Hazard Assessment (OEHHA) added Aloe vera (non-decolorized whole leaf extract) and goldenseal root powder as carcinogens on its list of "Chemicals Known to the State of California to Cause Cancer or Reproductive Toxicity" (Proposition 65 list). This action, write Venable attorneys Todd A. Harrison, Claudia A. Lewis, Michelle C. Jackson, and Jonathan A. Havens in a recent post to the firm's advertising law blog, will affect countless dietary supplement and cosmetic products.

Read the blog post to learn what the designation means for products containing the ingredients.

Read Venable's previous client alert about OEHHA's April 23 Notice of Intent for additional background information.

View the current Proposition 65 list.

New CBP Rules Fight Counterfeiting with Data Sharing

The constraints of the Trade Secrets Act have long frustrated anti-counterfeiting efforts by the legitimate owners of marks, write Venable attorneys Lindsay B. Meyer and Samuel D. Boro in a recent client alert. This has occurred because information contained on products and packaging (such as markings, alphanumeric symbols, and other codes) was deemed to be protected by the Act. That protection frequently made it difficult for U.S. Customs and Border Protection (CBP) agents to share information about suspected counterfeits with mark owners and importers.

However, a recent change to CBP rules now makes it easier for the agency to share information. The change allows CBP to share an un-redacted sample or image of a suspected counterfeit, as well as other information appearing on merchandise or packaging that might otherwise be protected by the Act, with mark owners and importers, as long as the information is provided for the purpose of determining whether the merchandise bears a counterfeit mark.

Read the client alert to learn how the new rules work and why some legitimate importers are unhappy about the changes.

FCRA's Hot! Don't Risk the Risk-Based Pricing Rule

The Federal Trade Commission (FTC) enforcement action against Sprint demonstrates that now is a good time for merchants who provide credit to consumers to review their policies and procedures for compliance with the Fair Credit Reporting Act's (FCRA) Risk-Based Pricing Rule, write Venable attorneys Jonathan L. Pompan, Andrew E. Bigart, and Alexandra Megaris in Venable's CFPB Newsletter.

The Rule requires merchants who bill on a deferred basis to provide consumers with a risk-based pricing notice if the merchant offers the consumer credit on materially less favorable terms based on information from the consumer's credit report or score.

Read the article to learn more about the Rule, why FCRA is a top enforcement priority for federal agencies, and what merchants can do to mitigate compliance risks.

With Non-Compete Agreements, Sometimes Less Is More

Employers are constantly looking for ways to fortify non-competes against attacks on their enforceability, write Venable attorneys Douglas B. Mishkin and Kristin M. Koger in a recent post to the firm's Trade Secrets and Transitions Blog. Narrowing the range of the prohibited activity and explaining how the employee's access to the employer's secret sauce requires preventing the employee from competing post-employment should help.

However, they write, in the end it all comes down to money. It is easy for employers to think, "If we just pay this guy to sit on the sidelines, no one could argue with that." This is often a dangerous misconception.

Read the blog post to learn how being more flexible can increase enforceability.