The Advertising Law Blog provides commentary and news on developing legal issues in advertising, promotional marketing, Internet, and privacy law. This blog is sponsored by the Advertising, Marketing & Promotions group at Olshan. The practice is geared to servicing the needs of the advertising, promotional marketing, and digital industries with a commitment to providing personal, efficient and effective legal service.
The failure to comply with National Advertising Division (“NAD”) review processes typically results in a referral to the Federal Trade Commission (“FTC”). This strong enforcement deterrent results in a reported 97% compliance rate with NAD decisions. Recently, NAD has been expanding the agencies to which it refers advertisers that have failed to comply with its rulings or participate in its processes. As discussed below, NAD recently referred the advertising claims of a crisis pregnancy center to the Massachusetts Attorney General for possible enforcement action. In addition, NAD has developed a referral relationship with leading social media platforms, such as Meta, resulting in prompt enforcement of NAD’s recommendations.
The Federal Trade Commission (“FTC”) has filed a complaint against Doxo, Inc. (“Doxo”), a bill payment company, and its co-founders, alleging that the company utilized misleading ads to imitate consumers’ billers, as well as deceptive practices to mislead consumers into paying millions of dollars in junk fees. As demonstrated by this latest enforcement action, the FTC is continuing to focus on manipulative marketing techniques known as “dark patterns.” This should serve as a reminder to marketers that the use of such practices may result in enforcement actions.
I recently had the privilege of co-presenting on legal issues involving “green” claims at ACI’s 2024 Food Regulation Conference. A notable developing trend that was discussed during our panel is the increasing scrutiny of aspirational environmental benefit claims, such as a pledge to be carbon free by 2050.
Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and litigation counsel Katherine Mateo published an IPWatchdog article entitled “The Rise of IP Lawsuits When Posting Images: How to Navigate and Avoid Copyright Infringement Issues.” In the article, Mary and Kat discuss how the unlicensed use of another person’s photograph, even if that photograph is of yourself, comes with potentially robust legal ramifications.
The Federal Trade Commission (“FTC”) has amended the Telemarketing Sales Rule (“TSR”). The simplest change is the expansion of the TSR to explicitly cover all business-to-business (“B2B”) telemarketing and artificial intelligence-enabled calls, which takes effect on May 16, 2024. Oddly, the only B2B calls previously covered by the TSR were those selling office and cleaning supplies.
Olshan’s Advertising, Marketing & Promotions Group was named a leading Tier 1 law firm by Media Law International. MLI’s 2024 ranking guide, covering firms and practitioners with media law experience across 60 jurisdictions globally, recognized Olshan for its excellence. Employing a multidisciplinary approach, Olshan integrates Brand Management & Protection and Advertising lawyers to offer knowledgeable, solutions-focused advice. View the rankings and editorial in MLI’s 2024 guide.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, will speak on the panel “What It Really Means to be ‘Green’ in 2024: Mastering the Intricacies of Making and Substantiating Green Claims in Today’s Regulatory Landscape” as part of ACI’s 8th Annual Summit on Food Law – Regulation, Compliance and Litigation on May 1, 2024, at 1:15 p.m. at The Metropolitan Club, Chicago, IL. The panel will explore the new proposed changes to the Green Guides and the impact that FTC’s contemplated rulemaking could have on environmental marketing claims, differences in the FTC’s guidance and state law requirements for the term “recyclable,” how to manage the risks associated with vendors making claims about your products and green claim trends that are vulnerable to class-action activity.
You can register for the Summit here.
New Jersey Supreme Court Sides with Aéropostale in Consumer Class Action
In a significant legal victory for New Jersey retailers, that state’s Supreme Court has ruled in a class-action lawsuit that advertising illusory discounts and phantom former prices does not necessarily cause consumers to sustain an ascertainable loss, and therefore dismissed the lawsuit despite the state’s generally very pro-consumer protection statute, the Consumer Fraud Act (“CFA”).