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 we have discussed previously, the prevalence of Internet usage in everyday life has led to an e-commerce market whereby consumers are able to post online reviews of a vast range of products and services. For the most part, such reviews are made public without regard to the relevant expertise of the reviewers, and with little to no oversight as to the legitimacy of such reviews. You can see our prior articles on this topic here and here. Against this backdrop, the Federal Trade Commission (“FTC”) has brought a claim against a marketer for the deceptive use of fake, paid-for reviews on an independent retail website for the first time. The FTC’s enforcement efforts in this regard should signal to marketers that the FTC is taking such actions seriously.
The Food and Drug Administration (“FDA”) and Federal Trade Commission (“FTC”) have issued joint warning letters focusing on disease claims being made by dietary supplement marketers. In addition, the FDA announced new steps it is undertaking with a goal toward protecting the public from potentially harmful products and unapproved claims.
As we have previously reported, California’s Consumer Privacy Act (the “CCPA”) was passed in 2018 and goes into effect in January 2020, which provides broad protections for consumers in their ability to control the use of their personal data. You can see our prior article here. On February 25, 2019, California Attorney General Xavier Becerra and Senator Hannah-Beth Jackson introduced SB 561, legislation intended to strengthen and clarify the CCPA. The Attorney General’s press release can be viewed here. Senator Jackson has stated that the bill is designed to ensure that “the most significant privacy protections in the nation are robustly enforced”.
As we have discussed in previous blog posts, subscription-based business models and the automatic renewal techniques they popularly employ have garnered attention from regulators in recent years. The District of Columbia has now passed its own law regulating automatic renewals. With the passage of this law, D.C. joins many other states in requiring specific disclosures from advertisers who utilize automatic renewals as an integral part of their business model. The law has provisions similar to those in certain states, but also has important timing requirements.
The repurposing of social media images has its risks and should only be undertaken in accordance with the platform’s terms of use and applicable law. PopSugar has been unable to shake a copyright infringement class action brought by social media Influencer and law school graduate, Nita Batra.
Reflecting California’s continuing challenge to automatic renewal programs, direct marketing firm, Guthy-Renker, agreed to settle claims brought by multiple California city and district attorneys (CART) alleging that the direct marketing firm engaged in improper automatic renewal practices with respect to its sale of ProActiv skin products and Wen hair products.
Businesses with websites have been besieged by plaintiffs seeking to assert ADA claims that e-commerce websites fail to comply with accessibility requirements. A recent Ninth Circuit decision finding that the ADA applies to websites and mobile apps strengthens these plaintiffs’ positions in what is at best a grey area for businesses to address compliance.
The Supreme Court has unanimously vacated a Fifth Circuit decision concerning arbitrability. The court held that courts my not override a contract that tasks arbitrators with determining whether a claim should be arbitrated or litigated, even in the case that the quest for arbitration is “wholly groundless.”
Following the enactment of the European Union’s General Data Protection Regulation (“GDPR”), which went into effect on May 25, 2018, Google has now been fined heavily for violations of the law. On January 21, 2019, the Commission nationale de l’informatique et des libertés (“CNIL”), the French data privacy authority, fined Google €50 million (approximately U.S. $57 million) for violating the GDPR because it did not properly ask its users for consent to use their data to personalize advertising and because the company makes it too hard for users to find out how their personal information is used and how long that information is stored. This is the largest financial penalty for a privacy breach in Europe.
On January 16, 2019, Luxury Daily sponsored its seventh annual Luxury FirstLook conference in New York City, entitled Luxury FirstLook 2019: Digital Acceleration. The expert speakers were extremely informative and included senior executives from numerous companies, including, Facebook, Google, Boston Consulting Group, LVMH Moet Hennessy, Lladro, Town & Country, Artsy, Forrester Research, McLaren Automotive, Valmont, Quintessentially, Flont, Armarium, Perrin Paris, L.K. Bennett, Publicis Groupe’s Team One, Martini Media, Vibes, Leading Real Estate Companies of the World’s Luxury Portfolio, Douglas Elliman, Concierge Auctions, Luxury Institute, Customer Experience Group, PMX Agency, Timeless Distributors, Shanker Inc. and Euromonitor. I was invited to attend as Olshan is legal counsel to Luxury Daily.