California dunks Gatorade over advertising claims, taxes are coming to online sellers, and more in this issue of Advertising Law News & Analysis

4 min

Advertising Law Tool Kit

Download Venable's New Advertising Law Tool Kit Today

This week Venable published the expanded and updated sixth edition of its Advertising Law Tool Kit. The Tool Kit is a handy desk reference designed to help in-house counsel and marketers identify and mitigate common advertising law problems. In addition to newly added topic areas, the sixth edition also includes "Be Prepared" sections, which provide overviews on how to address Lanham Act litigation, state attorney general inquiries, and Federal Trade Commission (FTC) investigations. The Tool Kit is viewable online and can be downloaded to your computer or mobile device, or printed.

Download Now


California Dunks Gatorade Game

Gatorade recently learned that not even the world's fastest man can outrun the long arm of the law. The company paid California $300,000 and agreed to injunctive relief to settle allegations that the format of a Gatorade-branded mobile game featuring Jamaican sprinter Usain Bolt disparaged water, and encouraging children to consume sugary sports drinks. In a recent blog post, Venable partners Amy Mudge and Randy Shaheen write that the settlement is a good reminder that advertising claims are everywhere – and so is potential liability.

Read More

online shopping

The Taxman Cometh for Marketplace Vendors

Retailers selling via online marketplaces have become the latest targets of states seeking to compel online vendors to collect sales and use tax on sales to customers located in the state and to subject such vendors to state income tax, write Venable attorneys Walter Calvert and Tammara Langlieb in a recent blog post. The Multistate Tax Commission, an intergovernmental state tax agency, is coordinating a Voluntary Disclosure Settlement program to enable retailers that sell products online using a third-party marketplace provider/facilitator to register with a state for current and prospective tax compliance and at the same time settle tax obligations for prior years. The deadline for participation in the program is October 17, 2017.

Read More


Fruit Snack Arguments: Not Just for Back Seats

Parents are used to hearing children argue over fruit snacks, but they aren't the only ones. Over the past few years, class action plaintiffs and brands have squared off in courtrooms over allegations that the labels of fruit snacks are deceptive because they create an impression that fruit snacks are a healthy food. In a recent blog post, Venable attorneys Dan Silverman and Elise Gabriel write that the dismissal of a class action in the U.S. District Court for the Central District of California last month is part of a growing trend in jurisprudence that could be good news for brands. The court held that the Mott's fruit snack labels at issue could not deceive consumers because they did not affirmatively misrepresent their contents. In short, the court held that the labels could not deceive consumers because they were literally true.

Read More

targeting money

Accounts of Chokepoint's Death May Be Greatly Exaggerated

In an August 16 letter to Congress, the Department of Justice (DOJ) announced that "Operation Chokepoint," an attempt by DOJ and other regulators to hold payments companies and financial institutions liable for the fraudulent actions of merchants was "no longer in effect, and it will not be undertaken again." While Operation Chokepoint may be over, write Venable partners Michael Blume and Len Gordon, the concepts behind Chokepoint will likely remain in the enforcement toolboxes of the DOJ, FTC, Consumer Financial Protection Bureau, and state attorneys general.

Read More

Advertising Law Tool Kit

From the Tool Kit:

When it comes to mitigating the risk of class action lawsuits, the best offense is a good defense. In the brand new edition of Venable's Advertising Law Tool Kit, Venable partners Edward Boyle, Roger Colaizzi, Angel Garganta, and Dan Silverman share steps companies can take to reduce their exposure to class action litigation.

Read More



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.


Association of National Advertisers/Brand Activation Association (ANA/BAA) Marketing Law Conference

November 13-15, 2017 | Chicago, IL

The 2017 ANA/BAA 39th Marketing Law Conference: Breakthrough: Legal Strategies for Dynamic Businesses, builds on its reputation as the broadest marketing advertising and privacy law conference, with deep practical legal content, fruitful networking, and major CLE credits. Presenters will be offering deep dives into all aspects of marketing and advertising law, social and digital media, IP and privacy, FTC, state AG and self-regulation (NAD, CARU), Lanham Act, and class actions, with many new sessions to be added. Hear from 135 of the nation's leading inside and outside counsel, and federal, state, and self-regulatory officials. Venable partners will be discussing complex legal issues on several panels relating to advertising litigation, loyalty programs, native advertising, influencer marketing, and user-generated content.