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.
The Federal Trade Commission (“FTC”) has filed a complaint against Doxo, Inc. (“Doxo”), a bill payment company, and its co-founders, alleging that the company utilized misleading ads to imitate consumers’ billers, as well as deceptive practices to mislead consumers into paying millions of dollars in junk fees. As demonstrated by this latest enforcement action, the FTC is continuing to focus on manipulative marketing techniques known as “dark patterns.” This should serve as a reminder to marketers that the use of such practices may result in enforcement actions.
I recently had the privilege of co-presenting on legal issues involving “green” claims at ACI’s 2024 Food Regulation Conference. A notable developing trend that was discussed during our panel is the increasing scrutiny of aspirational environmental benefit claims, such as a pledge to be carbon free by 2050.
Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and litigation counsel Katherine Mateo published an IPWatchdog article entitled “The Rise of IP Lawsuits When Posting Images: How to Navigate and Avoid Copyright Infringement Issues.” In the article, Mary and Kat discuss how the unlicensed use of another person’s photograph, even if that photograph is of yourself, comes with potentially robust legal ramifications.
The Federal Trade Commission (“FTC”) has amended the Telemarketing Sales Rule (“TSR”). The simplest change is the expansion of the TSR to explicitly cover all business-to-business (“B2B”) telemarketing and artificial intelligence-enabled calls, which takes effect on May 16, 2024. Oddly, the only B2B calls previously covered by the TSR were those selling office and cleaning supplies.
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.