Another cup of advertising insight, preventing company-ending campaign mistakes, and more in this issue of Advertising Law News & Analysis

4 min


Have Another Cup of Advertising Insight

In the second edition of Venable's Coffee with Advertising Lawyers video series, Venable partner Amy Ralph Mudge discusses cross-device tracking and EU/U.S. data transfer issues with former FTC Commissioner Julie Brill.

Watch the video to learn how the FTC, or at least one of the Commissioners, looks at these important issues.

Check Yourself Before You Wreck Yourself

In most areas of life, putting in a little work up front can prevent big problems down the road. So why is it that many in an industry like performance-based advertising — where small mistakes at the outset of a campaign can result in extraordinarily expensive, company-ending problems later on — often pay little attention to those important details? Venable partners Leonard L. Gordon and Jeffrey D. Knowles tackle this puzzle in the March issue of Response magazine.

Knowles and Gordon outline best and worst practices marketers should be mindful of when executing marketing campaigns. While you will not be able to turn back the clock on every issue, they write, proactively ensuring your marketing and business practices are compliant can often soften the blow when regulators and/or plaintiffs' attorneys come knocking.

Read the article to learn what issues you should consider when developing and executing your campaigns.

Ninth Circuit Ices Yogurt Labeling Lawsuit Until FDA Completes Review

After the Ninth Circuit's recent decision in Kane v. Chobani last month, food companies may get a break from the relentless labeling and "natural" class action lawsuits that have dogged them for years, write Venable attorneys Randal M. Shaheen and Christopher L. Boone in a recent post to Venable's advertising law blog.

The Ninth Circuit vacated the lower court ruling that granted Chobani's motion to dismiss, but then took a step that could have widespread implications for class actions pending in California that allege misleading use of the terms "natural" and "evaporated cane juice." The Court stayed further proceedings, pending the outcome of an Food and Drug Administration (FDA) review of these two terms.

Although the FDA plans to issue final guidance on the use of the term "evaporated cane juice" by the end of this year, the outcome of the FDA's review of the term "natural" is less clear.

Read the full blog post to learn how the Court's ruling may impact pending class actions and what happens if the FDA decides not to make a choice about the use of the term "natural" on food labels.

Read the Ninth Circuit's decision in Kane v. Chobani.

Dialed-Up Litigation

Even marketers familiar with FTC demands may not be prepared for recent developments in class action lawsuits and litigation. "You've seen a substantial uptick in consumer class actions and false advertising class actions," Venable partner Daniel S. Blynn told Electronic Retailer magazine in a recent interview. "Where you're really seeing class actions explode is in the Telephone Consumer Protection Act (TCPA). We have seen a huge increase in those since last summer."

Cases like these are easy to file, the damages add up fast, and new guidance from the Federal Communications Commission (FCC) could open more defendants to TCPA class actions. In addition, the U.S. Supreme Court's pending decision in Tyson Foods, Inc. v. Bouaphakeo, which is expected later this year, could be either very good or very bad for class action defendants.

Read the full article on Electronic Retailer's website.

Upcoming Event:


April 18-21 | Las Vegas, NV

The Electronic Transactions Association is the world's largest payments industry trade group. TRANSACT 16 is where you make connections, secure partners and funding, and leverage emerging technologies. Be sure to attend the 10-session Policy and Politics track for a 360-degree view of the regulatory and political issues driving the payments industry provided by Venable's payment attorneys, state and federal government officials, and leaders from across the industry. Visit Venable in booth 1127 or click here to schedule a meeting with Venable's payments team.

Find more information and the conference agenda here.

Response Expo

April 26–28 | San Diego, CA

Please join Venable at the Response Expo 2016, which brings together key decision-makers and industry leaders from the corporate marketing arena and direct response spectrum. Attend the Venable Mixer from 4:30 – 6:00 p.m. PT Wednesday. Jeffrey D. Knowles will speak on the DR Hall of Fame Roundtable at 1:45 p.m. on Thursday. Click here if you would like to schedule a meeting with Venable during response expo.