Advertising Law News and Analysis | June 14, 2018

4 min

Uncertainty regarding FTC orders, the joy of being classless, and more in this issue of Advertising Law News & Analysis.

LabMD Decision Leaves FTC Searching for "Just Right"

When the 11th Circuit published its decision in LabMD, Inc. v. FTC, No. 16-16-270 (11th Cir. June 6, 2018) last week, it had been a long time coming. There was a great deal of interest in how the court might resolve the issue of whether the "substantial injury" requirement under the unfairness prong of Section 5(a) of the Federal Trade Commission (FTC) Act was satisfied by a 2008 data breach that involved almost 9000 consumers, with little evidence of actual consumer monetary injury.

However, the issue regarding the meaning of "substantial injury" will have to wait for another day, writes Venable partner Randy Shaheen in a recent blog post. The court declined to address that question, instead ruling that the FTC's order as drafted is unenforceable. In doing so, the 11th Circuit likely surprised many observers and created a great deal of uncertainty regarding FTC orders in general.

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The Joy of Being Classless

If you have no class, then life is good. On the other hand, having class is expensive and distracting, and causes misery. Thanks to the United States Supreme Court, employers can bask in the warm rays of never having any class ever again, write Venable attorneys Todd Horn, Doug Mishkin, and Lauren Stocks-Smith in a recent client alert. That is because the ruling the court issued last month permits employers to avoid class action lawsuits under the Fair Labor Standards Act and other employment laws. However, the authors write, having no class is not automatic – you have to work at it.

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From the Tool Kit:

When your advertising, marketing, or privacy practices attract the attention of the FTC, it is rarely a good thing. In the most recent edition of the firm's Advertising Law Tool Kit, Venable partners Jeff Knowles, Amy Mudge, and Randy Shaheen provide pointers for companies to consider when they receive a subpoena or access letter from the FTC.

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Upcoming Events

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.

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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.

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"Green" Claims: Is Environmental Marketing Meaningful or Misleading?

June 22, 2018 | New York, NY

Advertising products as environmentally safe or eco-friendly can attract consumers concerned with sustainability, and the number of companies employing green marketing has grown significantly since the 1990s. Though the FTC updated its Green Guides in 2012 to clarify expectations regarding marketing claims for consumer goods, ambiguities in green marketing remain. Venable partner Randy Shaheen will participate in a panel exploring topics related to green marketing, including unsubstantiated claims and consumer protection laws, voluntary standards, challenges of procuring reliable scientific evidence and self-regulation, implications of misleading marketing tactics for consumers, the regulation of negligible environmental benefits, and "green washing."

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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% discount on registration for the webinar.

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