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.

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. 

Happy holidays! As we enter a new year, Olshan’s Advertising & Branding groups share their list of current hot topics in advertising law. In no particular order (drum roll please), here is our top 10 list:

New York has just passed legislation that has the capacity to be one of the most onerous telemarketing compliance laws. The legislation may potentially impact telemarketers’ outbound calling and data sharing practices.

Olshan Advertising & Marketing attorneys have authored an extensive Q&A, published by The In-House Lawyer which can be used as a general key to the legal framework and issues that surround the pharmaceutical advertising law in the United States.

Businesses that offer gift cards or other pre-paid electronic funds need to be aware of a new potential exposure relating to offering such products.   

Visa has announced that to enable greater transparency, choice, and control for customers, effective April 18, 2020, it is updating its Policy for Subscription Merchants Offering Free Trials or Introductory Promotions.   In an effort to help merchants comply with these new policies, Visa has created a Trial Subscription Quick Reference Card and a Reminder Notice with answers to frequently asked questions.  While not binding as a regulatory matter, compliance with Visa’s policies is important under companies’ merchant processing agreements.

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