Enforcing your website terms, health app developers get a regulatory check-up, and more in this edition of Advertising Law News & Analysis

5 min


Don't Just Click "Accept" on Your Website Disclosures

Litigation surrounding the enforceability of website terms is not new, write Venable attorneys Edward P. Boyle and Shahin O. Rothermel in a recent post to Venable's advertising law blog. However, when it comes to this long-running issue, courts continue to grapple with the question of what constitutes an adequate disclosure and binds website visitors to the terms and conditions of a service agreement.

Last month, the Seventh Circuit decided in Sgouros v. Transunion Corp. that an online browsewrap contract was not binding because it did not provide notice that the customer was subject to the agreement. What happened? The defendant attempted to enforce an arbitration agreement that was not visible unless the user first scrolled through eight printed pages full of text presented in a narrow scroll box.

Read the full blog post to learn why the Sgouros decision is a cautionary lesson in the enforceability of website terms and conditions.

Read the Sgouros decision here.

Plaintiff Steeps in Green Tea Class Action Defeat

A California federal court recently ruled that a consumer's false labeling claims against a tea manufacturer could not proceed as a class action because of the lack of an acceptable class-wide damages model and standing. Despite California's well-deserved reputation as a plaintiff-friendly jurisdiction, write Venable attorneys Jeffrey D. Knowles and Stephen R. Freeland in the May edition of the DRMA Voice, this case is the latest in a trend of California courts requiring that plaintiffs prove damages can be calculated on a class-wide basis at the certification stage.

Read the column to learn what lessons class action defendants can glean from this decision.

Read the court's denial of class certification here.

FTC Says It's Check-Up Time for Heath App Developers

When the Federal Trade Commission (FTC) released business guidance and a web-based guidance tool for developers of health-related mobile applications on April 5, it wasn't working in a vacuum, write Venable attorneys Michelle C. Jackson, Thora A. Johnson, Julia Kernochan Tama, and Jonathan A. Havens in a recent client post to Venable' advertising law blog. The guidance was released in conjunction with the Department of Health and Human Services' Office of the National Coordinator for Health Information Technology (ONC) and Office for Civil Rights (OCR), as well as the U.S. Food and Drug Administration (FDA). Moreover, the new health apps tool follows on the heels of similar guidance released last year by FDA and ONC.

Given the proliferation of health apps, developers can expect increasing federal and state scrutiny of these products. The veritable alphabet soup of potentially applicable laws requires that developers maintain a sophisticated understanding of both existing and future requirements.

Read the blog post to learn more about the FTC's tool and guidance, as well as some of the non-obvious laws and regulations to which health apps could be subject.

Read the FTC's announcement and access its web-based guidance tool here.

Tips for FinTech and Marketplace Lenders for Managing CFPB Enforcement Risk

FinTech and marketplace lenders are fast realizing that the Consumer Financial Protection Bureau (CFPB) and other regulators are focused on their activities, write Venable attorneys Jonathan L. Pompan, Andrew E. Bigart, and Alexandra Megaris in a recent client alert. Recent announcements that the CFPB is taking consumer complaints about marketplace lenders and the prospect of investigations and examinations of lenders and service providers, as well as the FTC's announcement that it will host a series of events looking at consumer protection across different areas of emerging financial technology, mean companies in these industries must prepare now for future oversight.

Read the client alert to learn five ways to manage CFPB enforcement risk.

Upcoming Events:


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 to 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.

Click here to learn more and register.

Investigations, Regulation, and Legislation: How State AGs and Washington are Responding to Technology That's Changing the Way We Live and Work

April 28 | San Francisco, CA

Please join Venable attorney Erik Jones for a lunch discussion of how State Attorneys General and federal regulators are responding to the explosive growth in businesses that generate marketshare by disrupting existing industries and regulatory frameworks. The event will discuss how disruptive businesses and technologies are creating regulatory challenges related to cybersecurity, data security, privacy, and consumer protection. It will also explore areas where state and federal governments are likely to pursue legislation and/or new regulation to address these disruptions.

Click here to learn more about the event and register.