Native advertising workshop, affiliate marketers vs. FTC, and more in this issue of Advertising Law News & Analysis

5 min

Announcement:

October 27 Native Advertising and Influencer Marketing Workshop

Native advertising, social media promotions, and influencer marketing are some of the hottest ways to break through conventional roadblocks and activate consumers. But consumers are not the only ones noticing these campaigns. Government regulators have taken a keen interest in the brands, publishers, agencies, and influencers creating and executing the campaigns.

On October 27, join Venable (in our Los Angeles office or by webinar) for a half-day workshop designed to make sense of recent enforcement actions involving social, influencer, and native campaigns. Our veteran advertising attorneys will share best practices that brands, agencies, and publishers can use to mitigate legal risk. In addition, the workshop will provide nuanced tips for structuring deals and licensing IP for these campaigns. CLE credit is available for this workshop.

Click here to register for the workshop.


Analysis:

FTC Wins Some, Loses Some at Second Circuit in LeanSpa Appeal

The Second Circuit recently affirmed the FTC's efforts to hold LeadClick, an affiliate network, responsible for its role in working with LeanSpa, a dietary supplement marketer that marketed its products primarily through "fake news" stories placed by affiliate marketers, writes Venable partner Leonard L. Gordon in a recent post to the firm's advertising law blog.

However, the court rejected the FTC's efforts to hold CoreLogic, LeadClick's successor company, responsible as a relief defendant.

Read the full post to learn why the court's opinion provides important guidance on when companies doing business with those allegedly engaged in deception can be held liable.

Ninth Circuit Decides Not to Stay "Natural" Case, but Read the Fine Print

When courts decide to stay actions to await Food and Drug Administration (FDA) guidance on an issue, as happened recently in Kane v. Chobani and Swearingen v. Santa Cruz Natural, Inc., our ears perk up, write Venable attorneys Angel A. Garganta, Randal M. Shaheen, and Shahin O. Rothermel in a recent post to the firm's Advertising Law blog. However, the recent decision by the Ninth Circuit Court of Appeals not to await the FDA's guidance on "natural" claims in Brazil v. Dole bucks that recent trend.

The authors write that the decision might signify an increase, or at least no slowdown, of "natural" lawsuits. However, the standard of review for the Ninth Circuit leaves district courts free to continue to make conflicting determinations on whether cases should be stayed in anticipation of FDA guidance.

Read the full post to learn why companies have no choice but to wait and see how "natural" cases unfold, until the FDA speaks up on the issue.

Read the full text of the Brazil v. Dole opinion.

Prepaid Cards Face Sweeping New Federal Regulations

On October 5, the Consumer Financial Protection Bureau (CFPB) released its long-awaited final rule for prepaid accounts under the Electronic Fund Transfer Act (Regulation E) and the Truth in Lending Act (Regulation Z). The rule, which runs to nearly 1700 pages, establishes sweeping consumer protections that impact all aspects of the prepaid industry, write Venable attorneys Allyson B. Baker, Jonathan L. Pompan, R. Andrew Arculin, Andrew E. Bigart, and Evan R. Minsberg in a recent client alert.

The rule, which largely tracks with the proposed rule the CFPB issued in November 2014, will require prepaid providers to include detailed "know before you owe" disclosures in packaging, provide easy and free access to account information, limit consumers' losses when funds are stolen or cards lost, and follow rules designed for credit cards when offering credit in connection with a prepaid account.

Read the full client alert to learn why the rule represents a significant shift in the regulatory framework for prepaid products, and will require significant investments in resources, new internal controls, and comprehensive compliance policies and procedures.

Read the text of the full rule here.


Upcoming Events:

Native Advertising and Influencer Marketing Workshop

October 27, 2016 | Los Angeles, CA

Join Venable for a half-day workshop designed to make sense of recent enforcement actions involving social, influencer, and native campaigns. Our veteran advertising attorneys will share best practices that brands, agencies, and publishers can use to mitigate legal risk. In addition, the workshop will provide nuanced tips for structuring deals and licensing IP for these campaigns. CLE credit is available for this workshop.

Click here to register for the workshop.

ad:tech New York

November 2-4, 2016 | New York, NY

ad:tech is the original industry authority for marketing and media technology, where marketing, technology, and media communities assemble to share new ways of thinking, build strong partnerships, and define new strategies to compete in an ever-changing marketplace. Be sure to visit Venable in the exposition hall at the Javits Center.

Click here to register and to learn more about the conference.

2016 ANA/BAA Marketing Law Conference

November 9-11, 2016 | Chicago, IL

The Brand Activation Association's Marketing Law Conference continues to be the broadest marketing and advertising law conference, with deep practical legal content, fruitful networking, and major CLE credits. Attendees can expect to hear from the nation's leading counsel, including Venable attorneys Amy Mudge and Melissa Steinman, on all aspects of Marketing and Advertising Law and Digital Media, including but not limited to native advertising, IP and privacy, loyalty programs, FTC, state AGs, and state regulation.

Click here to register and learn more about the conference.

ADSUM - Advertiser Summit

December 2-5, 2016 | Aspen, CO

Venable is a proud sponsor of the first ADSUM Advertiser Summit in Aspen, Colorado. ADSUM is a conference dedicated to unifying advertisers and focused on issues unique to online merchants and retailers. Join Venable attorneys Ari N. Rothman and Shahin O. Rothermel, who will present and moderate a panel discussion on "Regulatory Activities, Compliance Best Practices, Offline vs Online Lessons" on Saturday, December 3.

Click here to register and to learn more about the conference.