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.
FTC must react to Eleventh Circuit’s LabMD ruling
The use of consumer perception surveys before the National Advertising Division (“NAD”) is an important tool for advertisers who are challenging and defending advertisements. NAD often expresses a wish to see surveys in their opinions, and surveys are one way for NAD to determine the messages conveyed to consumers in advertisements. On December 7th, the Advertising Self-Regulatory Counsel (“ASRC”) hosted an informative conference on consumer perception surveys which gave insight into the use of such surveys before NAD over the last five years and guidance into what makes a good survey from experts and from the perspective of NAD.
Many online ecommerce companies operate on a subscription model. Such companies need to be cognizant of federal and state laws governing advertising and enrollment in continuous service plans. The failure to consider particular state requirements can have significant consequences given the aggressive plaintiffs’ bar. A recent federal-court approved settlement between Yahoo Inc. and users of Rivals.com highlights this exposure.
The FTC heavily relies upon its statutory authority to seek injunctive relief in federal court. The FTC has broadly interpreted these powers to seek not just injunctive relief enjoining a particular practice, but monetary relief in the form of disgorgement. Moreover, the FTC has taken the position that defendants in such actions are not entitled to a jury trial, because the relief being sought is merely equitable.
The FDA and FTC together have recently issued 13 warning letters to manufacturers, distributors, and retailers, cautioning against the sale of e-liquids for use in e-cigarettes using labeling and/or advertising that is similar to that which is found on children’s food products, like juice boxes, candies, or cookies. The warning letters were sent in furtherance of the FDA and FTC’s efforts to protect young people from the dangers of nicotine and tobacco products.
Floyd Mayweather, Jr. Failed To Disclose He Was Paid For Social Media Posts