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.
In the wake of several state-enacted regulations and restrictions on automatic renewal provisions in consumer contracts, on May 10, 2019, Rep. Mark Takano (D-Calif.) introduced the federal Unsubscribe Act of 2019, H.R. 2683, to increase consumer protection with respect to online negative option agreements. Negative option agreements include by definition automatic renewal contracts, continuity plan contracts and free-to-pay conversion contracts.
Disgorgement Avoided Even Though Liability Established
The National Advertising Division of the Better Business Bureau (“NAD”) recently found two separate “#1” claims to be sufficiently supported, thereby providing valuable insight to advertisers regarding the type and degree of information required to support such a claim.
The Electronic Retailing Self-Regulation Program (“ERSP”) has recommended that Alo, LLC (“Alo Yoga”) modify the Instagram posts of certain influencers of its products to disclose the material connection between Alo Yoga and the influencers.
As we have discussed in a prior post, the FTC and FDA have been involved in a joint effort to curb non-compliant labeling and/or advertising of e-liquids for use in e-cigarettes. For the most part, the agencies have been focused on protecting children and young people from the dangers of nicotine and tobacco products by cautioning manufacturers, distributors and retailers of e-liquid products against using labeling, packaging and/or advertising that resembles children’s food products, like juice boxes, candies or cookies.
On June 17, 2019, the California Department of Alcoholic Beverage Control (the “Department”) issued an Industry Advisory to its licensees in the alcoholic beverage industry regarding club renewals (the “Advisory”). The purpose of the Advisory is to alert its licensees to the legal requirements for subscription services or other purchasing agreements, which commonly operate in the alcoholic beverage industry as wine clubs, beer-of-the-month clubs and spirits clubs. The Advisory notes that when consumers sign up for these clubs and agree to receive future shipments or deliveries of wine, beer or spirits, they effectively become subscribers to the licensee’s offering of products. To the extent these memberships are creating a paid subscription or purchasing agreement that is automatically renewed, the clubs must comply with California and Federal statutes that regulate such purchasing arrangements.
The SEC’s Office of Investor Education and Advocacy warns investors to be skeptical of endorsements from famous influencers marketing new investment opportunities.
On May 20, 2019, Senator Josh Hawley, the Junior Senator from Missouri, announced that he will introduce the Do Not Track Act to aid consumers in controlling their personal data. The Do Not Track Act is similar to the national “Do Not Call” list, which gives individuals the power to block online companies from collecting data beyond what is necessary for their online services.
Kawhi Leonard, an NBA player who plays for the Toronto Raptors, sued Nike on June 3, 2019 in the U.S. District Court for the Southern District of California, Case 3:19-cv-01035-BAS-BGS, seeking declaratory relief of non-infringement and a declaration that he created and owns the KL2 logo: 
, that Nike did not author the logo and has no rights to the logo, that Nike is not entitled to copyright registration of the logo and that Nike defrauded the Copyright Office by intentionally misrepresenting the author of the logo.