TCPA has plaintiffs dialing for dollars, a broken pact draws the FCT's ire, and more in this issue of Advertising Law News & Analysis

4 min

smartphone laws

TCPA Order Has Plaintiffs Dialing for Dollars

In July 2015, a divided Federal Communications Commission (FCC) issued its omnibus Telephone Consumer Protection Act (TCPA) Order, which modified and ostensibly "clarified" numerous aspects of the TCPA. Many in the legal industry predicted that, in the wake of the Order, TCPA litigation would increase at an even higher rate than it already was.

"Boy, were we right," writes Venable partner Dan Blynn in a recent blog post. A study conducted by the U.S. Chamber Institute for Legal Reform found a 46% uptick in TCPA litigation between August 2015 and December 2016, and fully one-third of the lawsuits filed were federal class actions.

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healthcare apps

Broken Pact Draws FTC Ire

In an ironic twist of fate, the Federal Trade Commission (FTC) last week charged the operators of the Pact Mobile App, which paid consumers for keeping their fitness promises and charged consumers who missed their goals, for failing to honor its promises to consumers.

According to the FTC, Pact did not pay – and actually charged – many consumers who kept their pacts, write Venable attorneys Len Gordon and Shahin Rothermel in a recent blog post. In addition, the app allegedly continued to charge consumers who had deleted their accounts.

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summer sunshine

A Long, Hot Summer for Telemarketing Law

Summer was busy for those following the litigation, enforcement, and regulatory landscape shaping telemarketing business practices, writes Venable partner Dan Blynn in the September edition of Response Magazine. The regulation of telemarketing practices is, for the most part, shaped by three groups: the FCC, the FTC, and courts that adjudicate private lawsuits brought under the TCPA. This summer, each of these groups had something to offer.

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NAD Lashes Out Over Use of Stale Market Data

A best-selling claim can be very powerful, writes Venable partner Amy Mudge in a recent blog post, and a National Advertising Division decision released earlier this month examines when, exactly, the bloom is off the rose when it comes to the data supporting best-selling claims. In markets where the margin between the top seller and other competitors is slim, and there is expected and frequent innovation in a product category, Mudge writes that it is wise to limit best-selling claims to advertising that can be changed quickly as market conditions evolve.

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Advertising Law Tool Kit

From the Tool Kit:

Marketers that want to reach consumers by telephone and text face federal and state regulatory hurdles. In the most recent edition of the firm's Advertising Law Tool Kit, Venable partner Ellen Berge shares best practices that can help companies mitigate the risk of government enforcement and private litigation.

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National Advertising Division Annual Conference 2017

October 2-3, 2017 | New York, NY

Learn from the experts on how to keep your claims on the level and what to do when a competitor is driving you (or your client) crazy with claims you believe are unsubstantiated at this year's NAD conference. Venable's Amy Mudge will be speaking on a panel titled "Walking the Line in Claim Construction" on October 2. Other can't miss speakers include Thomas B. Pahl, Acting Director, Bureau of Consumer Protection, FTC; Tommy Henvey, Chief Creative, Brooklyn-based Something Different; and Karl A. Racine, Attorney General, District of Columbia. Attendees will also have the opportunity to meet the new directors of the National Advertising Division and Children's Advertising Review Unit.

Electronic Retailing Association's 2017 D2C Convention

October 2-5, 2017 | Wynn Hotel, Las Vegas, NV

Venable is proud to sponsor the 2017 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 #201, and mingle with our team at the Pre-Moxie Mixer on Tuesday, October 3 from 6:00 to 8:30 p.m.

Venable's Ellen Berge will be speaking on a panel titled "We're all in this Together: The Complicated Relationships that Make Up Your Direct Response Advertising Campaign" on October 4.

Schedule a meeting with Venable at D2C.


November 1-2, 2017 | New York, NY

Ad:tech New York will explore how personalized, meaningful engagement has inspired a new wave of marketing strategies backed by a powerful array of technology platforms. In this post-advertising era, creative use of technology will push business ahead and deliver exceptional customer experiences. Visit Venable in Booth #148.

Schedule a meeting with Venable at ad:tech.