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.
Olshan’s Advertising, Marketing & Promotions Group was named a leading Tier 1 law firm by Media Law International. MLI’s 2024 ranking guide, covering firms and practitioners with media law experience across 60 jurisdictions globally, recognized Olshan for its excellence. Employing a multidisciplinary approach, Olshan integrates Brand Management & Protection and Advertising lawyers to offer knowledgeable, solutions-focused advice. View the rankings and editorial in MLI’s 2024 guide.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, will speak on the panel “What It Really Means to be ‘Green’ in 2024: Mastering the Intricacies of Making and Substantiating Green Claims in Today’s Regulatory Landscape” as part of ACI’s 8th Annual Summit on Food Law – Regulation, Compliance and Litigation on May 1, 2024, at 1:15 p.m. at The Metropolitan Club, Chicago, IL. The panel will explore the new proposed changes to the Green Guides and the impact that FTC’s contemplated rulemaking could have on environmental marketing claims, differences in the FTC’s guidance and state law requirements for the term “recyclable,” how to manage the risks associated with vendors making claims about your products and green claim trends that are vulnerable to class-action activity.
You can register for the Summit here.
New Jersey Supreme Court Sides with Aéropostale in Consumer Class Action
In a significant legal victory for New Jersey retailers, that state’s Supreme Court has ruled in a class-action lawsuit that advertising illusory discounts and phantom former prices does not necessarily cause consumers to sustain an ascertainable loss, and therefore dismissed the lawsuit despite the state’s generally very pro-consumer protection statute, the Consumer Fraud Act (“CFA”).
In the constantly changing and confusing world of consumer privacy laws, it is more important than ever for businesses to evaluate and reevaluate their collection and use of personal data. There is currently no comprehensive federal consumer privacy law, but as the first quarter of 2024 comes to a close, comprehensive state consumer privacy laws have gone into effect in California, Colorado, Connecticut, Virginia and Utah. Three more states – Texas, Oregon and Montana – have enacted privacy laws that go into effect in 2024, and six states – Delaware, Iowa, New Hampshire, New Jersey, Tennessee and Indiana – have enacted privacy laws going into effect in 2025 and 2026. Seventeen additional states have active privacy law bills and are likely to pass their own privacy laws within the years to come. What this means is that consumer privacy laws are here to stay, and companies who conduct business in the United States cannot ignore their obligations under these laws. Any business that collects personal data from residents of these states may need to comply with these laws, regardless of where that business is located.
Random sample method used to calculate damages
In the case of Federal Trade Commission v. Jonathan Braun, decided on February 6, 2024 in the Southern District of New York after a jury trial, a federal court entered a judgment requiring merchant cash advance company owner Jonathan Braun to pay $20.3 million in monetary relief and civil penalties for misleading small businesses and unlawfully seizing their assets. Braun was found guilty of deceiving business owners about how much money he would advance to them and how much they would have to pay back.
The war on drip pricing continues. New York’s new credit surcharge law is now in effect requiring businesses to provide important pricing disclosures. The law amends and clarifies New York’s existing credit card surcharge law, General Business Law Section 518. Key requirements are outlined below.
Chair of the firm's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman will speak on the panel “Shining a Light on ‘Dark Patterns’: What All Companies Must Know About this Rising Area of FTC Advertising Enforcement” as part of ACI’s 7th Annual Legal, Regulatory, and Compliance Forum on Advertising Claims Substantiation on February 9, 2024, at 9:45 a.m. The panel will explore how the Federal Trade Commission (FTC) and other enforcers are rapidly increasing their focus on “dark patterns” in advertisement designs, which are practices that regulators believe can trick or manipulate consumers into buying products or giving up their privacy. In addition, the Commission also just released a new proposed rule governing subscription offerings/negative options. Topics to be considered will include: specific website design and advertising practices that are currently triggering enforcement activity; the types of allegations being brought by the FTC in cases where dark advertising patterns are alleged; how companies can avoid being the next target in this rising wave of deceptive advertising enforcement; restoring your product’s reputation after it falls prey to a dark pattern; and the FTC’s latest amendments to the rules governing subscription offerings/negative options and junk fees.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and associate Morgan Spina published an article in New York Law Journal entitled “Regulation of Automatic Renewals Remains Key Issue for Lawmakers.” In the article, Andy and Morgan discuss the revision of statutes surrounding subscription renewal fees, specifically those that are relevant to the cancellation of automatic renewals.