FCC seeks comments on TCPA, the risky combination of product safety, product liability, and the Internet of Things, and more in this issue of Advertising Law News & Analysis.
FCC Seeks Comments on TCPA
When it comes to the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission (FCC) is going back to the drawing board—and it wants some help.
Earlier this month, the Commission announced that it is seeking comments "on several issues related to interpretation and implementation of TCPA, following the recent decision" of the U.S. Court of Appeals for the D.C. Circuit in ACA International v. FCC, write Venable attorneys Dan Blynn, Stephen Freeland, and Brian Tengel in a recent blog post.
Last March, the D.C. Circuit's long-awaited decision dealt a partial blow to the FCC's 2015 Omnibus Telephone Consumer Protection Act Order, setting aside the FCC's interpretation of "automatic telephone dialing system" (ATDS) as overly broad and vacating the agency's approach to calling reassigned numbers. The FCC is now looking for input from interested parties, which have until June 13 to provide comments, on how to define ATDS and how to address the other issues that the court raised, including the treatment of calls made to reassigned numbers.
The Internet of Things, Product Safety, and Product Liability: A Risky Combination
On May 16, the Consumer Product Safety Commission held a public hearing to receive testimony on the Internet of Things (IoT) and issues related to product safety. While each presenter at the hearing had his or her own agenda, there was agreement that emerging IoT technologies present potentially significant safety, privacy, and product liability issues.
Testimony during the hearing elicited more questions than answers, and the CPSC clearly believes that further conversation is required to address these issues, write Venable attorneys Heather Bramble and Thomasina Poirot in a recent blog post. As part of its efforts to advance the conversation about the safety and privacy issues associated with IoT, the CPSC encourages stakeholders to submit comments on this issue until June 15.
D.C. Circuit Lets FTC Decide … Without Deciding
The D.C. Circuit Court of Appeals recently ruled – in Soundboard Association v. FTC – that the Federal Trade Commission's (FTC) November 2016 opinion letter, which reclassified soundboard technology as "robocalls" under the Telemarketing Sales Rule (TSR), is not subject to judicial review, writes Venable partner Dan Blynn in the May edition of the DRMA Voice.
The court found the 2016 opinion letter was not the final word because the FTC's procedures say it is not. A staff opinion letter technically is not the binding decision of the agency, according to the FTC. As a result, the FTC could make a policy change with huge effects on the telemarketing industry – or any other industry subject to FTC oversight – without being subject to administrative rulemaking procedures, namely notice and comment or judicial review.
Venable Wins $3.1 MM in Damages Against Online Counterfeiters
On May 24, a Venable team led by Marcella Ballard, Victoria Danta, and Maria Sinatra won $3.1 million in damages, fees, and costs from a default judgment against 14 groups of online counterfeiters with e-commerce stores selling counterfeit Zig-Zag® Orange, a flagship product of Venable clients North Atlantic Operating Company, Inc. and National Tobacco Company, L.P. The online counterfeiters operated on e-commerce platforms, such as eBay and DHGate.
In granting default judgment, and issuing damages, fees, and costs, on North Atlantic's Lanham Act claims, the Chief Judge of the U.S. District Court for the Eastern District of Michigan highlighted the specific need for deterrence justifying six-figure statutory damages (multiplied by the 14 groups of online counterfeiters), stating that the exact copying of Zig-Zag® Orange, in an attempt to trick consumers, was "the most egregious form of [trademark] infringement."
From the Tool Kit:
Brand owners face many challenges when it comes to protecting their brands in today's global marketplace. In the most recent edition of the firm's Advertising Law Tool Kit, Venable partners Roger Colaizzi, Marcella Ballard, Joshua Kaufman, and Justin Pierce highlight best practices brands should employ to minimize losses from counterfeits, knockoffs, or product diversion.
The Intersection of Regulation and Litigation in the Food and Dietary Supplement Industries
On Demand | Online
In this on-demand webinar, Angel Garganta and Michelle Jackson – two of Venable's most experienced partners working on matters for food and supplement industry clients – discuss the latest trends in Food and Drug Administration (FDA) regulation and consumer class action litigation. Angel and Michelle discuss topics ranging from "natural" and "organic" claims to regulation and litigation concerning added sugars, standards of identity and "healthy" by implication claims. This webinar is a must-watch for those interested in the legal landscape affecting these industries.
Hot Topics Using Social Media For Promotions | AdLaw Webinar
June 21, 2018 | Online
Join Venable's Melissa Landau Steinman as she discusses how marketers utilizing new media must adapt and be cognizant of potential legal issues, as the regulatory landscape governing social and mobile media continues to develop. Consumers are spending more time, attention, and money on social and mobile media, and marketers are following suit. While the regulators – and the platforms – have largely applied existing laws to the new platforms, they have, over time, evolved and explained their position on specific applications. This live webinar will address topics including mobile marketing, social media disclosures, FTC compliance, and more.
Legal Issues of Running Social Media and Mobile Sweepstakes and Contests
July 17, 2018 | Online
As consumers shift more of their time and attention from traditional forms of media to social and mobile media, marketers are devoting more resources to reaching eyes and ears through new media. While there's nothing new about prize promotions such as sweepstakes and contests, merging such promotions with social and mobile media can be a particularly efficient and effective way of engaging consumers. During this webinar presented by Lorman, Venable partner Melissa Landau Steinman will provide an in-depth review of the legal issues relating to conducting a prize promotion through social and/or mobile media. Clients and friends of Venable who use the "register" link below will receive a 50 percent discount off registration for the webinar.