Advertising Law Blog

Sponsors and promoters of sweepstakes are facing the decision as to whether to cancel or postpone planned promotions due to COVID-19. With respect to promotions that have already been registered and bonded in Florida, the Florida Department of Agriculture and Consumer Affairs (“FDACS”) has provided certain advice as to how these promotions will be treated. The FDACS has advised that there will be no refunds of filing fees in the event a promotion is cancelled due to COVID-19. However, if revisions to the Official Rules are required due to COVID-19, the FDACS has agreed to waive late penalties. In addition, the FDACS will permit substitution of trip or sports related prizes due to COVID-19.

With the federal government and most states under a state of emergency due to the COVID-19 pandemic, telemarketers should be aware of laws that restrict telemarketing calls during a state of emergency.  

As many businesses may be aware by now, California recently enacted sweeping new laws governing the collection, use and management of personal information. The California Consumer Privacy Act (CCPA) that went into effect on January 1, 2020 has many businesses struggling to understand the application of the law and exactly what a business needs to do to comply. In an effort to clarify some aspects of the law, California issued draft regulations in October 2019 that provided some guidance to businesses, and those draft regulations continue to be revised as late as March 11, 2020. While still not finalized, the revised CCPA draft regulations offer some clarification, and open up more questions, on certain issues.

The stage for legality of digital fantasy sports for money has again gone dark in New York following the February 6, 2020 ruling issued New York appellate court.  The appellate court’s ruling delivers yet another setback for companies like FanDuel and DraftKings, both highly successful digital sports entertainment.

Oral arguments held in Liu v. SEC

As part of a periodic review of its rules and guidance, the Federal Trade Commission is seeking public comment as to whether changes should be made to its Endorsement Guides, which provide insight as to the agency’s thinking on influencer marketing and testimonials/endorsements. Initially published in 1980, the Guides were most recently revised in 2009 to provide guidance on a wide array of internet marketing techniques. Since 2009, social media and the use of influencer marketing has become an integral part of many companies’ advertising and marketing portfolio and has grown significantly. Against this backdrop, the FTC is seeking public comments to determine if and how it should revise the Guides to reflect this continually evolving landscape of social media and online advertising.

In the current fight over the enforcement authority of the Federal Trade Commission (“FTC”) – see previous Olshan blog posts here for background – Complete Merchant Solutions, LLC (“CMS”), an independent sales organization (“ISO”) that serves as an intermediary between merchants interested in processing credit card transactions and credit card payment networks, is the latest challenger.

In Casper Sleep’s initial public offering prospectus, the company states that the use of third-party paid marketing programs to promote its products presents the possibility of negatively affecting its reputation and subjecting it to fines and other penalties.

Ruling Is A Setback for TCPA Plaintiffs

Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in a LegalTech News article on the use of social media by attorneys and the ethical implications that accompany it.