Advertising Law News & Analysis - January 14, 2016

5 min


What's Up with "Up To" Claims?

For many years, the substantiation standard for so-called "up to" claims was whether an "appreciable number" of consumers could enjoy the claimed maximum benefits, write Venable partners Amy Ralph Mudge and Randal M. Shaheen in the January edition of the DRMA Voice. However, that changed in 2012, when the Federal Trade Commission (FTC) settled several cases involving "up to" savings claims for replacement windows and introduced a new standard requiring that "all or almost all" consumers be likely to achieve the maximum claimed savings in order to justify an "up to" savings claim.

Now a recent National Advertising Division (NAD) decision presents a third way to look at "up to" claims. This, write Mudge and Shaheen, demonstrates that after years of stasis, the application of and standards for "up to" claims are evolving.

Read the column by Mudge and Shaheen to learn what marketers need to know of the evolving standards for "up to" claims.

FTC: Lumosity's Claims Weren't That Smart

It does not take a genius to know that health claims are on the Federal Trade Commission's radar, write Venable attorneys Amy Ralph Mudge and Shahin O. Rothermel in a recent post to Venable's advertising law blog. At last year's NAD conference, FTC Commissioner Julie Brill said the Commission would prioritize enforcement of unsubstantiated health claims, such as cognitive claims. The FTC's recent settlement with Lumosity should be a wakeup call for any marketers that doubted Brill's sincerity, the authors write.

Read the full post to learn why the FTC took exception to Lumosity's claims and what guidance marketers making health claims should take from the settlement.

Read the FTC's complaint in the Lumosity case.

Consumer Financial Protection - Prepare for 2016

Now that we are halfway through January (how did that happen so quickly?), advertisers and marketers are looking back at the lessons of 2015 and trying to anticipate what's over the horizon for the coming year. Companies that offer consumer financial products and services, process payments, collect debt, or share data with reporting agencies cannot afford to overlook hints dropped by the Consumer Financial Protection Bureau (CFPB) and other regulators in 2015, writes Venable partner Jonathan L. Pompan in a recent post to the firm's advertising law blog.

On January 12, Venable's CFPB Task Force hosted a webinar providing an overview of what to expect this year, as well as practical tips and examples from their work on the front lines of recent enforcement battles.

Read the blog post to learn what areas will be enforcement priorities in 2016.

Click here to view the recorder webinar on Venable's YouTube Channel.

The FTC Awakens: Native Advertising Enforcement Statement Released

Native advertising, or "sponsored content," is a red-hot area of digital advertising. Two days before Christmas, the Federal Trade Commission released the long-awaited Enforcement Policy Statement on Deceptively Formatted Advertisements – the Commission's informal guidance to advertisers, agencies, and publishers about when, where, and how sponsored content should be disclosed to consumers.

In a recent post to the firm's advertising law blog, Venable partners Amy Ralph Mudge and Randal M. Shaheen break down the Enforcement Policy Statement. They write that like this holiday season's other long-awaited blockbuster, parts of the Statement will feel old and familiar, while others may be quite shocking.

Read the full blog post to learn what you need to know to comply with the FTC's native advertising guidance.

Read the FTC's recent publication, Native Advertising: A Guide for Businesses.

Read the full text of the Enforcement Policy Statement.

IRS Extends ACA Reporting Deadlines

In a Client Alert last fall, Venable partners Thora A. Johnson and Juliana Reno explained that the Affordable Care Act imposes two different reporting obligations on employers. The deadlines were to have been in the first quarter of 2016. However, the IRS recently announced that it has extended those deadlines.

Learn what you need to know about the new deadlines.

Upcoming Events:

The Canadian Institute's 22nd Annual Advertising and Marketing Law Conference

January 20, 2016 | Toronto, ON, Canada

Join Venable partner Amy Ralph Mudge for "The American Experience – Case Studies and Examples from the Federal Trade Commission," a discussion of some recent cases from the FTC and the American position on disclosure in online advertising.

Click here to learn more about the conference.

"Can You Hear Me Now?" American Bar Association

January 20, 2016 | Via Phone

Venable's Daniel S. Blynn will moderate "Can You Hear Me Now? Enforcers' Telemarketing Sales Rule (TSR), Do Not Call, and Telephone Consumer Protection Act (TCPA) Update" for the American Bar Association Consumer Protection and Media and Technology Committees on January 20, 2016. The panel of regulators will discuss, among other things, the hot telemarketing issues for each agency, their enforcement priorities, and what they consider when deciding whether to investigate individuals' and companies' telemarketing practices.

Click here for dial-in and registration information.

Innovation Education Summit

January 26-27, 2016 | Jackson Hole, WY

The 2016 Innovation Education Summit is a unique learning experience that focuses on developing thought leadership and strategies for the education sector. Join Venable partner Jonathan L. Pompan for a "Fireside Chat on Legal and Regulatory Developments Impacting the Education Sector."

Click here to learn more about the conference.

Electronic Retailing Association's Great Ideas Summit

February 22-24, 2016 | Orlando, FL

The Great Ideas Summit brings together the direct response industry's most influential leaders to hold high-powered meetings, close global deals, and develop new digital marketing strategies. Join Venable partner Randal M. Shaheen for his Masters Series session titled "Matching Claims to the Evidence: Brainstorming with the Experts" on February 23 at 1:30 p.m.

Click here to learn more about the Great Ideas Summit and register for the event.

Click here to schedule a meeting with a Venable attorney during the Great Ideas Summit.