Advertising Law Blog

The recent Supreme Court term resulted in a number of very important decisions that will impact companies engaging in advertising and marketing in the United States. Some decisions, such as Wal-Mart v. Dukes and AT&T v. Concepcion were pro-business particularly in the class action context.

Olshan partner Steven R. Gursky delivered a speech during the dedication of the Dr. Martin Luther King, Jr. National Memorial, commemorating the life and work of Dr. King.

On June 16, 2011, the Federal Communications Commission ("FCC") issued an Enforcement Advisory on cramming after announcing four Notices of Apparent Liability.

The Federal Trade Commission will be revising the "Dot Com Disclosures: Information About Online Advertising."

Olshan Grundman Frome Rosenzweig & Wolosky announced the formation of a new practice group, which will be known as the Advertising, Marketing & Promotions Department.

Indiana Governor Mitch Daniels signed into law House Enrolled Act 1273, which allows consumers to register their cell phone numbers, prepaid wireless calling, and Internet-enabled VOIP services with the state's existing Do Not Call registry.

The Ninth Circuit Court of Appeals ruled in Simonoff v. Expedia, Inc., that an email receipt displayed on a computer screen is not an electronically printed receipt under the Fair and Accurate Credit Transactions Act (FACTA).

Andrew Lustigman will speak at the Networking DM Panel on Compliance and Regulatory Issues to take place in Whistler, British Columbia on May 3, 2011.

In AT&T Mobility LLC v. Concepcion, a class action brought by cellular telephone customers against AT&T wireless, the United States Supreme Court affirmed that the arbitration dispute resolution remedy with a class action waiver set forth in the parties' contract was enforceable.

The Food and Drug Administration (FDA) and Federal Trade Commission (FTC) share jurisdiction over consumer health products such as dietary supplements.

The Restore Online Shoppers' Confidence Act ("ROSCA"), the product of the Senate Commerce Committee's investigation into online "data pass" and advanced consent (negative option) marketing is now in effect.

The Federal Trade Commission has released its list of top consumer complaints received by the agency in 2010.

The Supreme Court's March 1, 2011 decision in Federal Communications Commission et al. v. AT&T, Inc., may significantly limit a corporation's right to assert privacy protections relating to its affairs.

As we have previously reported in connection with the FTC's settlement with Nestle and Iovate as well as the POM Wonderful lawsuits, the Federal Trade Commission continues to expand its enforcement of health claims by makers of food and dietary supplements.

This telephonic update will summarize the significant developments in consumer protection law that occurred in February 2011.

Alibaba faces new scrutiny in the wake of an internal investigation which revealed that employees helped cover up fraudulent practices.

Businesses that charge consumers for paper copies of bills need to carefully examine their practices in New York.

With limited exceptions, the Song Beverly Credit Card Act (California Civil Code 1747, et seq.) significantly restricts brick-and-mortar retailers' ability to request or record personal identification information in connection with processing credit card transactions.

A class action lawsuit brought against Groupon and Nordstrom illustrates the risks in offering pre-paid discounts for a limited period of time.

Andrew Lustigman's analysis of the legal outlook facing the mobile marketing industry appears in Mobile Marketer's Outlook 2011.

Facebook announced on December 1, 2010, significant revisions to its Promotions Guidelines that may potentially expand the ability of advertisers to utilize this important marketing channel to conduct promotions.

In response to a controversial business practice by the Better Business Bureau (BBB), in which higher grades are given to businesses that pay for accreditation, Connecticut Attorney General, Richard Blumenthal, has threatened to take legal action.

In October 2010, the FTC issued its proposed revisions to its Guides for the Use of Environmental Marketing Claims, commonly known as the "Green Guides."

California's new auto renewal legislation takes effect on December 1, 2010.

While mobile marketing continues to develop significantly given the primary importance consumers place on the devices coupled with their tremendous advances in technology, the law in this area continues to lag.

Andrew B. Lustigman has been named by New York Super Lawyers - 2010 Metro Edition as a top attorney in their advertising law practice area.

Apparel and accessories designer Fendi settled a trademark counterfeiting suit against Burlington Coat Factory Warehouse for a payment of more than $10 million.

The Federal Trade Commission and the marketer of POM Wonderful are waging competing legal actions against each other regarding the POM's ability to make certain health claims without obtaining prior FDA approval and possessing certain levels of substantiation.

Publishers Clearinghouse has signed a new consent judgment with thirty-two states and the District of Columbia that beefs up the company's 2000/2001 thirty-three state agreement.

Following on the heels of increased class action activity, state legislatures are increasing the focus on attacking allegations of cramming.

At a recent Congressional hearing, Federal Trade Commission Chairman Jon D. Leibowitz said that the agency is considering assessing the viability of a do-not-track list for online advertising modeled on the national "do not call" list utilized in telemarketing.

The Federal Trade Commission has announced sweeping amendments to the Telemarketing Sales Rule that significantly restricts the marketing of what it broadly characterizes as "debt settlement" programs.

As we had first mentioned in April 2010 after our ABA Roundtable on Social Media Law, the FTC is conducting a review of its rules under the Children's Online Privacy Protection Act of 1998 ("COPPA"), to determine whether changes to technology since its adoption warrant changes to the rule.

On September 23, 2010, The Lustigman Firm, P.C. attorney, Sheldon Lustigman, will present with Len Gordon, Northeast Regional Director of the Federal Trade Commission at ACI's 4th Annual Focus on Sweepstakes, Contests and Promotions.

Florida Attorney General Bill McCollum has reached an agreement with T-Mobile concerning unauthorized billing for third-party charges on consumers' mobile phone bills.

In two recent settlements announced the same day, the Federal Trade Commission has expanded the type of substantiation required for a marketer making certain health claims.

The Mobile Marketer article "Why is the mobile industry so susceptible to shakedowns?discusses some of the reasons why the mobile industry is facing so many different kinds of lawsuits, ranging from patent infringement to consumer protection issues.

In the Global Business & Legal Seminars continuing legal education (CLE) seminar "Sweepstakes and Contests: All You Need To Know for Legal Compliance" Andrew B. Lustigman and Adam Z.

Panelist highlights the struggles marketers are facing in complying with the laws governing this channel.

On June 30, 2010, Andrew Lustigman will join a panel of experts to discuss the latest legal developments in mobile marketing law.

The major pending financial regulatory reform bill (the Dodd-Frank Bill (HR 4173/S3217), was finalized without providing the FTC with additional enforcement and rulemaking powers.

The FTC recently issued an FAQ for business: The FTC's Revised Endorsement Guides: What People are Asking.

For the third consecutive year, Andrew B. Lustigman of The Lustigman Firm, P.C., has been named by the London-based Chambers & Partners as a Notable Practitioner in the field of advertising law.

The Federal Trade Commission announced that it is further extending its deferral of enforcement of the Identity Theft Red Flags Rule through December 31, 2010...

Why should companies care about claims being made about their products in social media?

Mobile marketing is different from any other form of marketing because it requires express consent, or opt-in, from consumers to be able to contact them.

On May 26, 2010, Andrew Lustigman will co-present at the ACI 4th National Advanced Forum on Financial Services Marketing Compliance on Alleviating Privacy Concerns Associated with Behavioral Targeting.

Visa announced that it is placing restrictions on "data pass," in which a consumer's credit card information is shared to process for additional merchants who offer online upsells without the re-entry of credit card data.

The recently proposed federal privacy legislation sponsored by Rep. Boucher (D-Va) and Rep. Stearns (R-Fla) seeks to create...

The FTC's Red Flags Rule (http://www.ftc.gov/redflagsrule), which requires covered organizations to implement a written identity thefts prevention program, is slated to go into effect on June 1, 2010.

Andrew Lustigman to present on Sweepstakes and Contest Promotions on the Domestic and International Scene at the May 12, 2010 meeting of the International Intellectual Property Society.

Response Magazine article entitled "Legal Review: New Jersey Attorney Targets Marketers in Putative Class Actions" is now online.

On March 9, 2010 the identity theft protection service, LifeLock, settled charges made by the Federal Trade Commission and 35 states alleging that the company made false claims.

New York led the way with its "Amazon Tax," which extended "nexus" for sales tax purposes to the 3rd party affiliates who referred deals to Amazon.com via its Associates Program, leading to a lawsuit from Amazon and other retailers.

On February 24, after a case lasting more than two years, an Italian court convicted three Google executives, including its global privacy counsel Peter Fleischer, of criminal invasion of privacy, and sentenced the men to six months in jail (although the sentences were automatically suspended under Italian law).

Andrew Lustigman's CLE course "Rolling the Dice: Legal Issues Related to Sweepstakes and Promotions" is now live at lawline.com.

A panel of lawyers discussed important issues for every mobile marketer during the "Legal Dos and Don'ts" panel at Mobile Marketing Day, hosted last week by Mobile Marketer and the Direct Marketing Association.

The state of Colorado recently passed two laws which apply to the direct marketing industry. One applies particularly to out of state sellers who do not collect and remit Colorado sales tax.

The Dannon Company recently settled a Northern District of Ohio class action, which is being characterized as one of the largest settlements of a food false advertising case.

On February 25, 2010, the FTC announced a settlement with ControlScan, a company that certifies the privacy and security of online retailers, over charges of misleading consumers. According to the FTC's release, ControlScan's seals promised consumers that it had reviewed sites' information security practices, although ControlScan performed "little or no verification" of the sites' protections.

Manufacturers, distributors and retailers of dietary supplements have become the target of new legislation proposed by Senator McCain and co-sponsored by Senator Dorgan. S.3002, The Dietary Supplement Safety Act of 2010, is currently pending before the United States Senate.

On April 8, 2010, Andrew Lustigman will Speak at the American Bar Association's 25th Annual Intellectual Property Law Conference: "Texting, Toggling, Tagging, Tweeting: Copyright, Trademark and Advertising in New Media" in Arlington, VA .

As we previously reported the FTC has placed pressure on behavioral marketers to self-regulate or face regulation. Under this threat, a broad coalition of advertising associations moved forward on establishing an easily identifiable icon and plain language in a disclosure statement that will be linked to the icon.

A distributor of pure pomegranate juice sued a competitor company alleging that ads which claimed their juice was "100%" pure pomegranate juice with "no sugar added" were false.

In December 2009, the Interactive Advertising Bureau (IAB), a consortium of media and technology companies leading the online advertising market, joined with the Association of American Advertising Agencies (4As) in releasing Version 3.0 of their Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less.

On January 27, 2010 the New York Attorney General announced that his office was investigating 22 popular online businesses that linked consumers to fee-based membership programs that charged "unauthorized" fees under the "guise" of discount offers.

Many marketers may be in favor of the proposed Wall Street Reform and Consumer Protection Act of 2009 (H.R. 4173) recently passed by the House in December 2009 and currently before the Senate because the bill seeks to address elements which caused the current financial crisis.

When it comes to the rules of advertising, many remain confused by the legal doctrine that while a statement can be literally true, it still can be considered false or deceptive.

In a recent administrative opinion, the Federal Trade Commission (FTC) rejected a defense that the marketing of dietary supplement products within FDA so-called structure and function claims, precluded enforcement by the FTC of deceptive health claims.

On February 10, 2010, Andrew Lustigman will participate at DMA's Mobile Marketing Day 2010 in New York as a panelist presenting on the "Legal Do's and Don'ts of Mobile Marketing".

The New York Attorney General has sued not just the marketer, but the finance company that processed the contracts company to recover for alleged false advertising by marketer, even though the finance company was not alleged to have been involved in active wrongdoing.

This telephonic update will summarize the significant developments in consumer protection law that occurred in January 2010.

The FCC has announced proposed revisions to its rules under the Telephone Consumer Protection Act (TCPA) to further restrict the transmission of pre-recorded voice calls to residential telephone subscribers.

After a tumultuous tenure, John Greco, has resigned as President and CEO of Direct Marketing Association (DMA).

In light of significant scrutiny and criticism by Senator Jay Rockerfeller (D-W.Va) who is investigating membership club upsell marketing, Affinion has advised the Senator that it will now require full credit card entry for enrollment.

On November 4, 2009 Facebook issued new Promotions Guidelines which govern the publicizing or administering of any sweepstakes, contest, competition or other similar offering.

As Facebook continues to evolve into a widely-popular medium that consumes our lives, so too are the restrictions on using the channel for promotional activities.

Andrew Lustigman will be speaking at the American Conference Institute's 23 ^rd National Advanced Forum on Advertising Law, being held on January 26-27, 2010, in New York.

On December 7, 2009 Google filed a lawsuit against a U.S. company it alleges runs work-at-home scams that unnecessarily charge people's credit cards and spoof Google's brand name.

On December 1, 2009, the FTC's newly revised Guides Concerning the Use of Endorsements and Testimonials in Advertising (http://www.ftc.gov/opa/2009/10/endorest.shtm) went into effect.

Perhaps the most important development in advertising law in several decades, the FTC's recently revised Guides Concerning the Use of Endorsements and Testimonials in Advertising go into effect on December 1, 2009.

The United State Commerce Committee has expanded its investigation into e-commerce companies which present membership club enrollment offers to their online customers and have the customers agree to pass their customers' credit card or debit card numbers to enroll in the membership club.

One of the most valuable features of the Web as a business medium is interactivity, the ability of a company to create a dialog with its customers (current and future) via the Web site.

Retailers with stores in New York should take note that effective November 25, 2009, an amendment to the state's existing refund policy law takes effect.

The Federal Trade Commission is once again delaying enforcement of the "Red Flags" Rule from November 1, 2009 until June 1, 2010, for financial institutions and creditors subject to enforcement by the FTC.

On October 29, 2009 the District Court for the District of Columbia ruled that the FTC cannot force practicing attorneys to comply with Red Flags Rule.

MoneyGram International will pay $18 million in consumer redress to settle FTC charges that the company allowed its money transfer system to be used by fraudulent telemarketers to bilk U.S. consumers out of millions of dollars.

According to a 10/20/09 release from the FTC, children/teen fashion company Iconix (which includes brands such as Mudd, Candie's, Bongo and OP) has agreed to pay a $250,000 fine as a penalty for violating the Children's Online Privacy Protection Act (COPPA).

Andrew Lustigman's environmental marketing law CLE course is now available online through Lawline.

On October 5, 2009 the Federal Trade Commission announced that it has approved final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act.

Andrew B. Lustigman and Sheldon S. Lustigman have been named by New York Super Lawyers - Metro Edition as two of the top attorneys in their practice area.

In August 2009, the Federal Communications Commission launched a sweeping inquiry into the mobile industry and its practices that could result in new regulations impacting the wireless marketplace.

140: The Twitter Conference, presented by the Parnassus Group, is currently in its second day at the Skirball Center in Los Angeles.

The U.S. Court of Appeals for the Second Circuit recently considered the case of Yahoo!'s LAUNCHcast, an Internet radio station that provides listeners with individualized webcasting, and ruled that LAUNCHcast was not an "interactive service" under the Digital Millennium Copyright Act.

This time it appears Jessica Seinfeld, wife of comic Jerry Seinfeld, is getting the last laugh.

A federal judge has ruled that Veoh Networks Inc., a web-video host, is entitled to safe harbor under the Digital Millennium Copyright Act ("DMCA") and is not liable for monetary or injunctive relief to members of Universal Music Group ("Universal"), which sued Veoh for copyright infringement.

Lustigman Firm is proud to be legal counsel to Michael C. Fina, the Sponsor of the Diamond Dash: Dash for a Diamond & A Cure.

Andrew Lustigman will speak at the 31 ^st Annual Promotion Marketing Law Conference in Chicago, IL on November 5-6, 2009.

The New York Attorney General and Dell and its subsidiary, Dell Financial Services (DFS), have reached a settlement whereby Dell agreed to by the AG's Office $4 million in restitution, penalties and costs to resolve charges of fraudulent and deceptive business practices across New York State.

In an unusual lawsuit, ValueClick, the California-based online advertising company, has agreed to pay a $10,000,000 cash settlement in a false advertising lawsuit (case no. 2:07-cv-05411-DDP-AJW, Carl Waldrep v. Valueclick, Inc.).