FTC wants to influence influencers, shipping and handling class action suits, and more in this issue of Advertising Law News & Analysis

4 min

Federal Trade Commission Seal

FTC Letters Seek to Influence Use of Influencers

Last month, the Federal Trade Commission (FTC) sent "education letters" to a number of brands inquiring about each brand's use of material connection disclosures in influencer campaigns. Even if you did not receive a letter, don't get too comfortable, write Venable partners Amy Mudge and Randy Shaheen in a recent blog post. These are probably not the last letters the FTC will send about influencer campaign practices, and while the compliance basics will remain the same, the Commission expects companies to become more knowledgeable and rigorous as time goes on and awareness of its guidance builds.

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golf ball on a tee

FTC: No Mulligans for Negative Option Golf Marketers

On March 24, the FTC filed suit in California against a group of online marketers for violating the FTC Act and the Restore Online Shoppers' Confidence Act (ROSCA), based on the defendants' free trial/negative option marketing for golf-related products and cooking gadgets, writes Venable partner Len Gordon in a recent blog post. According to the complaint, the defendants' websites, infomercials, and email marketing deceived consumers into believing that the products and services advertised are free by failing to clearly and conspicuously disclose that consumers would be charged if they did not cancel the "free" trial or return the "free" product.

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briefcase full of cash

A New Threat for Marketers: Shipping and Handling Class Actions

Never one to sit on its hands, the plaintiffs' bar is has found a new target for class action lawsuits, write Venable attorneys Amy Mudge and Brian Tengel in a recent blog post—the shipping and handling fees that retailers charge consumers in the course of delivering a product.

Two class actions filed in federal district court in California earlier this year allege that the defendants charged shipping and handling fees that "were not reasonably related to [their] costs of delivering or shipping the items to consumers but instead greatly exceeded those costs." Interestingly, both cases call out the Direct Marketing Association's Guidelines for Ethical Business Practice and a companion volume called Do the Right Thing to support the claim that excessive shipping and handling charges are "in contravention of established ethical principles."

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Supreme Court's Star Athletica Decision Reaches Far Beyond Fashion

Late last month, the United States Supreme Court's highly anticipated decision in Star Athletica, L.L.C. v. Varsity Brands, Inc., shifted the breadth of design protection within the apparel industry, write Venable attorneys Meaghan Kent, Matthew Busch, and Briana Rizzo in a recent client alert. Although the case specifically addresses the fashion industry, industrial design and nearly every field that combines design and utility will be similarly affected, and the full impact of the Court's decision will play out as designers, apparel producers, and others explore their increased rights and how they can protect and enforce them.

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Executive Order

A Look into Trump's New Executive Orders on Trade

In his bid to reshape U.S. trade policy, President Donald Trump last week issued two trade-related Executive Orders. The first Order is aimed toward enhancing enforcement efforts against trade remedies violations and increased collection of antidumping (and countervailing duties at the U.S. border. The second Order directs the Commerce Department and United States Trade Representative to launch in the next three months a wide-ranging assessment of the reasons for U.S. trade deficits. In a recent client alert, Venable's International Trade, Customs, and Logistics Group explores the Orders in detail. To learn more about how these Orders may impact your brand, or to discuss other questions relating to changes to trade policy under the new administration, please contact Venable's International Trade, Customs, and Logistics Group.

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Response Expo

April 25-27, 2017 | San Diego, CA

Response Expo, the event for performance-based marketers, is the industry authority on actionable, trackable, and measurable marketing. Join Venable at this year's event in San Diego to network with marketing leaders, executives, and suppliers; learn about new advances in the industry; and connect with peers. Venable partner Ari Rothman will participate in the "The Consumer Journey – Post-purchase" panel at 10:00 a.m. (PDT) on Thursday, April 27.


ERA Government Affairs Fly-In

May 23-24, 2017 | Washington, DC

Join the leadership of the Electronic Retailing industry as it gathers in Washington, DC to discuss the political landscape and what to expect from Congress, regulators, and the new administration in the year ahead. The Fly-In offers a unique opportunity to play a vital role in educating national leaders about the electronic retailing business and while molding and protecting the industry's future.