The "everyone does it" defense doesn't fly with NAD, the FTC is making "Made in USA" great again, and more in this issue of Advertising Law News & Analysis

4 min


NAD Doesn't Care That "Everyone Does It"

When a widespread industry practice comes under regulatory scrutiny, companies in the crosshairs sometimes fall back on the "everyone does it" defense. This argument has an intuitive appeal in the consumer-protection context, write Venable attorneys Randy Shaheen and Brian Tengel in a recent blog post. Consumers presumably are aware of practices that are common across an entire industry, the thinking goes, and they make purchasing decisions with knowledge of these practices. However, a recent case before the National Advertising Division of the Council of Better Business Bureaus (NAD) demonstrates that just because "everyone does it" doesn't mean you can, too.

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FTC Making "Made in USA" Great Again

The Federal Trade Commission (FTC) has recently increased its enforcement of its "Made in USA" requirements. In recent cases, the Commission has favored warning letters instead of formal administrative or legal proceedings. However, write Venable attorneys Amy Mudge and Katie Sheridan in a recent blog post, the FTC settlement announced last week against Bollman Hat Company and SaveAnAmericanJob, LLC demonstrates that if companies will not informally agree to corrective action to qualify or discontinue "Made in USA" claims that don't meet the standard, the FTC will not hesitate to bring formal enforcement action.

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Dose of TCPA Relief for Healthcare Entities

The Second Circuit gave healthcare entities a bit of relief from Telephone Consumer Protection Act (TCPA) worries when it ruled in favor of Mt. Sinai Health System in a TCPA suit stemming from a text message to a patient reminding the patient to get a flu shot. In a recent blog post Venable attorneys Dan Blynn and Renato Perez write that the decision has good and bad news for healthcare entities. Although a covered entity under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) cannot send health-related calls or texts without prior consent, odds are, if the patient gave his or her number to the entity, then the entity likely already has the consent it needs.

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Say Goodbye to Credit Card Signature Requirements

The days of signing your grocery receipt may be over soon, write Venable attorneys Andrew Bigart and Chris Boone in a recent blog post. The four major U.S. credit card brands (American Express, Discover, Visa, and MasterCard) are each making efforts to do away with signatures for various credit card transactions. The extent and geographic reach of these changes, however, are different for each brand, but one commonality is that the changes will begin in April 2018.

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From the Tool Kit:

Many consumers love "Made in USA" claims, but playing fast with the red, white, and blue can leave regulators seeing red. In the most recent edition of the firm's Advertising Law Tool Kit, Venable partners Amy Mudge and Randy Shaheen discuss questions brands should consider before making "Made in USA" claims.

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Digital Entertainment World (DEW)

February 5-6, 2018 | Marina Del Rey, CA

Digital Entertainment World (DEW) attracts digital minded executives and professionals, focused on monetizing digital content. DEW provides a first-class platform for leading intellectual property rights holders from video, music, games, and publishing to access the entire digital value-chain of technology and service providers, digital distributors and device manufacturers. Attendees can build the partnerships necessary to create and monetize digital content across all significant platforms. Venable partners Po Yi and Chris O'Brien will moderate panels on The Future of AR and AI for Media and Entertainment and Crowdfunding, Token Sales, and Smart Contracts, respectively.


Electronic Retailing Association Great Ideas Summit

February 26-28, 2018 | Miami, FL

The Great Ideas Summit is THE place to meet the highest tier of industry influencers and decision-makers, expand your brand reach, grow your competitive intelligence, develop leads, seal deals, and much more. Venable partner Jeff Knowles will moderate the "How to Improve Your Council of Better Business Rating" panel at 5:00 pm (EST), which will be followed immediately by the Venable-sponsored opening reception.