FTC disclosures workshop, the "morals clause" of endorsement deals, and more in this edition of Advertising Law News & Analysis

5 min

Special Announcement:

As consumers' thirst for content proves unquenchable and channels and tactics proliferate, marketers must navigate an ever-expanding frontier as federal and state regulators, as well as industry groups and competitors, track their every move. Join Utah Attorney General Sean Reyes, Venable's Jeffrey D. Knowles, and leading industry attorneys for the Direct 2 Regulator (D2R) session on Tuesday, September 13 at 11 am during the Electronic Retailing Association's D2C conference.


FTC Digs into Disclosures

The Federal Trade Commission (FTC) just released the agenda for a workshop it is hosting on September 15 titled "Putting Disclosures to the Test." The full-day event is aimed at improving the testing of disclosures by industry, academics, and the FTC.

The workshop will review methodologies to determine the effectiveness of disclosures and examine how consumers perceive disclosures. The event will also discuss what types of testing are most appropriate for a given disclosure type or medium.

Read this post on Venable's advertising law blog to learn more about the event.

View the event agenda here.


When Endorsers Attack: Understanding the "Morals Clause"

It has been a busy summer for the "morals clauses" in celebrity endorsement contracts, write Venable partners Amy Ralph Mudge and Randal M. Shaheen in a recent post to the firm's advertising law blog. Between Ryan Lochte's visit to a Rio bathroom and Colin Kaepernick's decision to sit out the national anthem, the advertising and mainstream press are abuzz over what happens when the actions of celebrity endorsers conflict with the corporate image the brands they endorse seek to project.

Mudge and Shaheen explore the ins and outs of the morals clause by looking back to a blog post they wrote about the litigation that resulted when Hanesbrands attempted to cancel its endorsement contract with then-Steelers running back Rashard Mendenhall over comments he made following the death of Osama Bin Laden.

Read the full post to get up to speed on endorsement contract morals clauses.

Don't Import a Compliance Problem

In March, a new federal law took effect that places additional pressure on importers to develop compliance systems for their supply chains, including identification of items potentially made with forced labor, write Venable attorneys Jeffrey D. Knowles, Doreen L. Manchester, and Andrew E. Bigart in the most recent edition of Electronic Retailer magazine.

The Trade Facilitation and Trade Enforcement Act of 2015 prohibits the import into the United States of goods, wares, articles, and merchandise mined, produced, or manufactured in a foreign country by convict, forced, or indentured labor. The new law comes at a time when federal and state regulators are turning their focus to supply chain management as a way to combat forced labor overseas.

Read the column to learn more about the new law and the increased compliance burden that comes with it.

Seventh Circuit Lets Manufacturers Decide What to Sell, and to Whom

Whereas competition law is now focused entirely on consumer welfare and the preservation of competition rather than the profits of competitors—even the small ones—the Robinson-Patman Act is almost obstinately about protecting the little guy, writes Venable attorney Robert P. Davis in a recent post to the firm's advertising law blog. Because of this, antitrust lawyers and the FTC have been tying themselves into knots for years in efforts to make the Act play well with the other antitrust laws, to varying levels of success. And the Seventh Circuit's recent decision in Woodman's Food Market v. Clorox Company and Clorox Sales Company illustrates the difficulties.

Woodman's sued Clorox under the Act after the company decided it would no longer sell "large packs" of its products, like massive bottles of salad dressing, to grocery stores including Woodman's, and to limit sales of that packaging option to only wholesale discount clubs.

After tremendous and somewhat tortured wrestling over the meaning of the word "promotion," the Seventh Circuit, Davis writes, made the world safe for manufacturers to decide whom to sell what to. It still isn't entirely clear when a seller's decision to limit its sales of certain package sizes to certain customers will only cause it to run afoul of the Robinson-Patman Act when one customer claims that it is harder for it to sell the package size it is allowed to buy.

After you read the above paragraph aloud five times fast, read the full post to learn how the court navigated the legal intricacies of the case.

Upcoming Events:

Electronic Retail Association's 2016 D2C Convention

September 13-15, 2016 | Wynn Hotel, Las Vegas, NV

Venable is proud to sponsor the 2016 ERA D2C Convention, where innovators, marketers, and manufacturers come together to showcase the latest trends in direct response. Be sure to visit Venable in booth #715, learn more about how to ensure your business succeeds during sessions featuring Venable's Jeffrey D. Knowles and Ellen T. Berge, and mingle with our team at the Pre-Moxie Mixer on Thursday, September 15 from 5:30 pm to 7:00 pm.

Be our guest! As our way of welcoming you to the show, register today for $100 off an All Access Pass, or a free Show Floor Only pass, using promotion code EX867217.

Subscription Summit

September 21-22, 2016 | Detroit, MI

The Subscription Summit is the first and only conference devoted exclusively to those who work in or alongside the subscription box industry. Join industry leaders, subscription box founders, and Venable attorneys to network and learn more about this rapidly growing industry.

Food and Drug Law Institute Conference

September 22, 2016 | San Francisco, CA

Join Venable partner Todd Harrison at the Food and Drug Law Institute conference in San Diego this fall. Todd will be speaking at the Introduction to Food Law and Regulation Course: Understanding How the Government Regulates the Food Industry, discussing the Federal Trade Commission's role and statutory authority regarding food advertising and the elements of claims substantiation.

SupplySide West

October 4-8, 2016 | Las Vegas, NV

Venable will be the Official Legal and Regulatory Partner at this year's SupplySide West Global Expo & Conference. This conference focuses on the exploration, discovery, innovation, and marketing strategy around the development of finished consumer goods in the animal nutrition, beverage, cosmetics, dietary supplements, sports nutrition, food, and pharmaceutical industries. Venable's Todd Harrison and Sen. Mark Pryor will participate in a Workshop panel on "State Attorneys General: Communication & Mitigation Strategies." Be sure to visit us at our offices directly in front of the SupplySide West registration entrance in the Expo Hall holding area!