Advertising Law News and Analysis | June 22, 2018

4 min

House addresses product safety for connected tech, qualified immunity suit is a bitter pill for LabMD, and more in this issue of Advertising Law News & Analysis.

NAD Okays Use of Non-Industry Standard Test

ANSI testing is often touted as the gold standard in assessing product performance. However, other types of third-party tests exist, even if they have not risen to the level of an "industry standard." In a recent blog post, Venable partner Randy Shaheen writes that a recent National Advertising Division (NAD) decision sheds some light on when and how advertisers can use such tests in their advertising.

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House Addresses CPSC-related Connected Technology Issues

Robust conversations about the Internet of Things (IoT), smart technology, and product safety are taking place all across the federal government and all at the same time, write Venable attorneys Heather Bramble and Thomasina Poirot in a recent blog post.

On June 13, the House Energy and Commerce Committee's Subcommittee on Digital Commerce and Consumer Protection voted to send H.R. 6032, the State of Modern Application, Research, and Trends of IoT Act (SMART IoT Act), to the full committee for consideration. The SMART IoT Act directs the secretary of commerce to conduct a study on the state of the internet-connected devices industry. It will be interesting to see whether or how quickly the Act actually becomes a law. Many stakeholders have vested interests in how the government chooses to engage on IoT risks, and the Act is a first step by which Congress can engage and survey the federal government on this issue. However, Bramble and Poirot write, stakeholders should not wait until a final consensus is reached. IoT risks are upon us, and it is clear that they are not going away anytime soon.

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Qualified Immunity Suit a Bitter Pill for LabMD

LabMD and its chief executive Michael Daugherty sued individual Federal Trade Commission (FTC) attorneys, arguing that they ramped up the Commission's investigation into LabMD in retaliation for public criticisms of the FTC made by Daugherty. Whether that's true ultimately proved unimportant, because the D.C. Circuit found that the FTC employees held qualified immunity – from civil suits covering a public official who is alleged to have violated a person's rights while the official was performing discretionary office duties – protecting them from suits.

In a recent blog post, Venable partner Randy Shaheen writes that even though this case resulted in a favorable decision for the FTC officials, it has already made waves within the agency. The FTC implemented a new policy last year allowing it to indemnify employees who are being sued for their job-related activities.

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From the Tool Kit:

For every organization, data privacy and security loom as critical elements of risk management. In the most recent edition of the firm's Advertising Law Tool Kit, Venable partners Stu Ingis and Milo Cividanes provide 10 questions whose answers are critical to assessing an organization's corporate privacy health.

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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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"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."


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.