May 4, 2017

Legal questions about marijuana advertising, copyright considerations for ads using emoji, and more in this issue of Advertising Law News & Analysis

5 min

For Medical Use Only

Marijuana Ads Spark Legal Questions

Although marijuana use continues to be illegal at the federal level, a number of states have passed laws allowing recreational and/or medical use of the drug, and it seems likely that the number of states decriminalizing marijuana will continue to grow. Given this trend, Venable partner Randy Shaheen was curious about the extent to which states have begun to regulate the advertising of legal marijuana. He was surprised to learn that many of the states where marijuana is legal have fashioned rules regulating its advertising.

@2017 Venable LLP. Using, distributing, possessing, and/or selling marijuana is illegal under existing federal law. Compliance with state law does not guarantee or constitute compliance with federal law. This informational overview is not intended to provide any legal advice or any guidance or assistance in violating federal law.

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Copyright Considerations for Ads

Given the ubiquity of emoji, it is no surprise businesses have used them in commercial ad campaigns. However, write Venable attorneys Kimberly Culp and Juan Aragon in a recent post to the firm’s advertising law blog, while emoji provide marketing teams a novel and fun method to communicate with consumers, they can also raise copyright concerns. The threshold legal question is whether emoji are copyrightable subject matter. Although there appear to have been no litigated cases on the question, one major phone manufacturer, at least, seems to believe that emoji are subject to copyright protection. It filed 676 copyright registrations for emoji characters in 2016. It is not alone, as there also numerous other copyright registrations for emoji. One way an advertiser can avoid the issue is to license the emoji it uses in its advertising. Continue reading to find out what the ad pictured above says.

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heart monitor

NY AG Seeks Cure in Three Mobile Health App Cases

Mobile apps geared toward health and fitness have become increasingly popular—and an increasingly popular target for regulators, write Venable attorneys Randy Shaheen and Brian Tengel in a recent post to the firm’s advertising law blog. In late March, the New York Attorney General announced settlements with three mobile health app developers that allegedly made misleading and deceptive claims about their apps' ability to accurately measure heart rates and monitor and play fetal heartbeats. Notably, the settlements also included allegations that the developers maintained inadequate privacy policies that failed to inform consumers about the scope of the developers' data collection and storage practices. These settlements are yet another reminder that both state AGs and the FTC are monitoring advertising claims and privacy practices for mobile apps.

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Data Security Rules of the Road

Learn the Data Security Rules of the Road

Data security risks are increasing in their intensity, variety, and sophistication. To help companies navigate this complex and constantly evolving landscape, Venable has published Data Security Rules of the Road: A Guidebook to FTC Cases v1.0. Venable's award-winning Privacy and Data Security Practice Group attorneys, with help from our in-house cybersecurity specialists and technologists, have deconstructed every one of the FTC's more than five dozen enforcement actions and derived the key features and lessons for your company to apply. The result is a practical yet detailed overview that will help unite the legal and operational aspects of your cybersecurity program.

Request a Copy


New York City Bar: Sweepstakes, Promotions & Marketing Laws: Comprehension & Compliance in a Digital/Mobile Environment

May 5, 2017 | New York, NY

At this half-day CLE program, experts in the field will address the critical issues that arise when offering games and other promotions relevant to today's marketplace. Topics to be discussed include the rules governing sweepstakes, skill contests and other promotions on the new platforms, compliance with the laws governing real time marketing, new mobile marketing developments, the increasing risks of corporate communications and blurred content/Native Advertising, and more. Venable's Melissa Steinman will be discussing legal considerations and risks when it comes to loyalty programs.


International Franchise Association Legal Symposium

May 9, 2017 | Washington, DC

IFA's Legal Symposium was designed by a task force of member volunteers with a particular emphasis on how legal and regulatory issues affect the everyday business operations of the franchise system. The program will provide value and real-world solutions to both business executives and their franchise legal partners. Venable's Ellen Berge will be speaking on a panel that discusses "Protecting Your Brand and Reputation in Social Media" at IFA in Washington, DC.


ETA Transact

May 10 – 12, 2017 | Las Vegas, NV

TRANSACT is the one show focused solely on the business of payments. Powered by Electronic Transactions Association (ETA), the world's largest payments industry trade group, it's the place where innovators gather to make the deals that shape the industry at the premier show focused on payments solutions. Hear from Venable's Jeff Knowles, Ellen Berge, Allyson Baker, John Banghart, Andrew Bigart, Michael Bresnick,  on May 10 and May 11 on panel discussions around the new Trump administration, risks in the evolving payments landscape, cybersecurity challenges, and navigating the FinTech game.


National Animal Supplement Council (NASC)

May 16 – 18, 2017 | New Orleans, LA

The National Animal Supplement Council is an industry group dedicated to protecting and enhancing the health of companion animals throughout the U.S. Venable's Melissa Steinman, Todd Harrison, and Amy Mudge will be speaking on various topics at the nonprofit industry group's annual conference in New Orleans. Attend the conference to hear discussions around substances in animal food, how to navigate ever-changing social media channels, and minimum advertising pricing.


ERA Government Affairs Fly-In and ERSP Summit

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 while molding and protecting the industry's future. The co-located ERSP Summit, which takes place on May 23, is a great opportunity to network with legal professionals and industry leaders to discuss trends in industry self-regulation and direct-response advertising.