Both federal and state legislators and regulators continue to focus on auto-renewal/continuous service programs, particularly emphasizing the necessity of online cancellation for orders initiated via the Internet. In March 2023, the FTC aimed to modernize its “negative option rule,” aligning it with state laws and increasingly common continuity programs. The proposed FTC Rule Concerning Recurring Subscriptions and Other Negative Option Plans would mandate disclosure of continuity program terms and cancellation processes before acquiring a consumer's billing ...
The National Advertising Division’s (“NAD”) streamlined Fast-Track SWIFT (Single Well-Defined Issue Fast Track) process is an expedited process by which single-issue truth in advertising claims in national advertising may be reviewed and assessed. The popularity of SWIFT challenges, which are structured to resolve designated challenges expeditiously, has been continuing to grow as competitors take advantage of the streamlined process.
* Taylor Lodise is a law clerk in the Litigation practice group.
In one of several related class-action lawsuits against the maker of a drink marketed under the brand name Joint Juice, Chief Judge Richard Seeborg of the United States District Court, Northern District of California, applied case law from 103 years ago to reduce statutory damages in a consumer class action from the $91.4 million seemingly required by a New York statute to just $8.3 million plus pre-judgment interest of $4.5 million. The August ruling was based on Fourteenth Amendment due process protections as interpreted by the Supreme Court in the 1919 case St. Louis, Iron Mountain & Southern Railway Co. v. Williams (“St. Louis”).
Sweepstakes entrants’ lack of knowledge of free method of entry insufficient to constitute violation of California Penal Code.
A Northern District of California case styled Suski v. Marden-Kane, Inc. (decided August 31, 2022) has resulted in a significant ruling in the field of sweepstakes law. A sweepstakes sponsored by Coinbase, a popular cryptocurrency exchange, and administered by Marden-Kane offered the chance to win valuable prizes to Coinbase users who bought or sold Dogecoin, a well-known “meme” token, on Coinbase for a total of $100 or more. The sweepstakes offered an alternative method of entry that did not require the trading of Dogecoin or incurrence by the entrants of any other expense. However, this free alternative method of entry was not well-publicized.
Title III of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12181, et seq., prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." Among other things, ADA Title III requires places of public accommodation and other commercial facilities—restaurants, movie theaters, hotels, and other businesses—to be designed, constructed, and altered in a manner that permits broad accessibility to persons with disabilities, and provides individuals with a private right of action for discrimination in violation of its regulations. Remedies for discrimination in violation of ADA Title III include injunctive relief compelling compliance with ADA accessibility standards, as well as reasonable attorney’s fees awarded to a successful plaintiff.
Juice Joint facing catastrophic liability after jury decides against it on the merits
Faced with a series of class-action lawsuits over its Joint Juice drink, Premier Nutrition Corp. has lost the first jury trial and is now fighting back against what could be a devastating financial blow if it loses a post-trial motion scheduled to be heard next month in the Northern District of California. The company was found by a jury to have falsely touted the health benefits of the drink, so the issue is no longer whether the claims were defensible, but how much the marketer will have to pay to the class of purchasers.
FTC likely to eliminate the exemption
The Federal Trade Commission (“FTC”) is considering a proposed amendment to the Telemarketing Sales Rule (“TSR”) that would broaden the rule’s scope by prohibiting material misrepresentations and false or misleading statements in business-to-business (“B2B”) transactions.
On July 1, 2022, California Assembly Bill 390 will take effect, adding new notice and cancellation requirements to California’s existing Automatic Renewal Law (“ARL”).
Source: NAAG Press Release
The National Association of Attorneys General (“NAAG”) sent a letter to the Federal Communications Commission (“FCC”) on behalf of 41 states’ attorneys general commending the FCC for its leadership in combatting robocalls and sharing their commitment to working collaboratively with the FCC via information-sharing agreements. The lead states in this effort are Colorado, Tennessee and North Carolina.
In a 5-0 decision, New York’s First Appellate Department granted a unanimous win to Olshan partner Scott Shaffer who was representing a California construction company.
Andrew Lustigman, Chair of the firm's Advertising, Marketing and Promotion's Group and Co-Chair of Brand Management & Protection Group, will speak on the panel “Rethinking the Role of Loyalty Programs: Considerations for Food Manufacturers” as part of ACI’s Food Law Conference.
Facebook joins Amazon in pursuing reviews for sale
Facebook, through its parent company Meta, has filed a federal lawsuit against a company that allegedly produces and sells fake reviews and feedback for ads designed to increase an advertiser’s Facebook Customer Feedback Score. The lawsuit was filed in the Northern District of California against Chad Taylor Cowan of Australia, who does business under the name Customer Feedback Score Solutions.
TCPA liability reduced to $500 for Gold’s Gym
A recent ruling out of the Central District of California will prove to be very useful for telemarketers faced with class actions under the Telephone Consumer Protection Act (“TCPA”). In Bustillos v. West Covina Corporate Fitness, Inc., United States District Judge Stanley Blumenfeld, Jr. denied an order seeking class certification where it was clear that the call in question violated the TCPA.
On May 12, 2022, Andrew Lustigman, Chair of the firm’s Advertising, Marketing & Promotion’s Group and Co-Chair of Brand Management & Protection Group and associate Morgan Spina will present at the Federal Bar Association webinar “Suppressing Negative Reviews Can Lead to Legal Trouble.”
Olshan’s Advertising, Marketing & Promotions practice group has been named a Tier 2 firm as part of the 2022 release of Media Law International.
Sunshine State Takes a Strong Stance against Autodialed Calls and Texts
The self-regulatory body that oversees advertising aimed at children, the Better Business Bureau (“BBB”) National Programs’ Children’s Advertising Review Unit (“CARU”), has issued revised CARU Advertising Guidelines (the “Revised Guidelines”). The Revised Guidelines state that advertisers recognize that children have limited knowledge and sophistication, and as such their ability to evaluate the credibility of advertising is limited. It is within this context that the Revised Guidelines seek to ensure that advertising directed to children is not deceptive or inappropriate. The Revised Guidelines apply to advertising content targeting children under the age of 13.
An overwhelming number of US/Canada international sweepstakes promotions typically void the Canadian province of Quebec, resulting in Quebec residents being ineligible to participate. The province is typically voided because of a French translation requirement and a novel registration and tax regime based on prize value with the Regie des alcools, des courses et des jeux (the “Régie”). In an effort to expand sweepstakes offerings to this highly populated Canadian province, it has been reported that Quebec recently changed its promotion registration and tax requirements, making it easier to run international promotions open to Quebec residents.
Reckitt Benckiser agrees to pay $53 million to end class actions regarding dietary supplement pain relief claims.
Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in AdAge (subscription required) regarding the impending ban that may happen to TikTok and how it would affect the brands that use the platform to publish its advertisements.
Olshan Advertising & Marketing attorneys have authored a comprehensive Q&A, published by The Legal 500, which can be used as a general key to the legal framework and issues that surround the pharmaceutical advertising law in the United States. The attorneys that contributed to this Q&A include the Chair of Advertising, Marketing and Promotions Group Andrew Lustigman and attorneys, Safia Anand, and Morgan Spina.
Click here for The Legal 500: Pharmaceutical Advertising Comparative Guide:United States: Pharmaceutical Advertising Q&A
Olshan’s Advertising, Marketing & Promotions Practice Group chair Andrew Lustigman spoke at a virtual event held on July 17 for American Conference Institute’s (ACI) Food Advertising & Marketing Law Master Symposium. Entitled “Clarifying the Role of Influencers/Virtual Influencers in the Food Industry,” Mr. Lustigman’s session explored implementing practical best practices for engaging with influencers and how to effectively audit what they say, contracting with influencers (and knowing when a contract is not enough), the legal challenges the food industry faces when working with virtual influencers, and understanding why what an influencer says is not considered a testimonial.
Resolving a circuit split, the Supreme Court (the “Court”) has held that willfulness is not a precondition for disgorgement of an infringer’s profits from the infringement in a trademark infringement case. In Romag Fasteners, Inc. v. Fossil Group, Inc., the Court considered willfulness as but one of the factors that may be considered in deciding whether or not to award an infringer’s profits to a trademark holder, rejecting the premise that a showing of willfulness is required before an infringer’s profits may be awarded.
FTC Chairman Joe Simons has released a statement addressing the FTC’s ongoing efforts to enforce consumer protections laws during the coronavirus pandemic.
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.
The recently enacted Farm Bill amends the Controlled Substances Act so that hemp and CBD products containing trace amount of THC are not classified as Schedule 1 controlled substances. While many are excited about this amendment, the law does not change FDA’s regulatory requirements for CBD-containing products under its regulatory jurisdiction.
The New York Law Journal (subscription required) published an article authored by Andrew Lustigman and Morgan Spina titled "Deceptive Pricing: Unlawful Trickery or Skillful Selling?"
Olshan partners Steve Wolosky, Andrew B. Lustigman, Thomas D. Kearns, Eric L. Goldberg, Stephen L. Ferszt and of counsel Samuel P. Ross have been selected by their peers for inclusion in The Best Lawyers in America© 2019.
Following up on other states recently enacting additional restrictions on automatic renewal provisions, on May 28, 2018, Vermont House Bill 593, an omnibus consumer protection bill, was allowed to go into effect without the signature of Governor Phil Scott, making Vermont the first state to require a “double opt-in” with respect to automatic renewal provisions.
Andrew Lustigman and Morgan Spina published an article in Leading Internet Case Law entitled “Court Rules Embedded Photos on Websites May Constitute Infringement.”
4th Annual Entertainment & Sports Law Symposium at Syracuse University College of Law.
Issue of Ascertainability Blocks Plaintiff From Proceeding On Class Basis
On April 5, 2017, Olshan hosted an evening with Clark Russell, Deputy Bureau Chief, Bureau of Internet and Technology for the New York State Office of Attorney General.
Companies and advertisers need to ensure that any “Made in USA” claims they make are not misleading, as the FTC has increased scrutiny of such claims.
Many early stage technology-based companies with promising ideas may compromise substantiating their product’s performance claims with the belief that there is time for compliance down the road. The FTC’s recent case against the marketers of two app-supported smartphone accessories, advertised to accurately measure consumers’ blood alcohol content, and who received funding on Shark Tank, highlights the risk in waiting.
Olshan Advertising Chair Andrew Lustigman will speak at the IZEAFest 2017 which is being held in Orlando, FL.
Section 230 of the Communications Decency Act immunizes websites that merely provide an outlet for another party to provide its content.
Olshan lawyers Andrew Lustigman and Safia Anand authored an article published in the New York Law Journal’s Fashion Law Report on September 12, 2016, entitled “Legal Pitfalls for Fashion Brands in Social Media.”
The American Conference Institute’s 5th Annual Summit on Digital Advertising Compliance: Social Media, Sweepstakes & Promotions took place on October 17-18, 2016 in New York, NY.
Companies turning away from traditional advertising.
On September 22-23, 2016 and October 19-20, 2016 Practising Law Institute presented “Advertising Law Institute 2016” in Chicago, IL and San Francisco, CA respectively.
In two recent decisions, CARU considered children’s “bead” art playsets and reinforced that advertisers must clearly disclose information about what products are included in the initial purchase, and avoid creating the impression that a product can perform in a manner that it cannot.
The FTC has approved a final consent order with Machinima, Inc., requiring the company to disclose when it has compensated influencers to post YouTube videos or other online product endorsements as part of influencer campaigns.
The FTC brought charges against Lord and Taylor claiming that it deceived consumers by paying for native advertisements, including a seemingly objective article in Nylon (an online publication) and a Nylon Instagram post, without disclosing that the posts actually were paid promotions for Lord & Taylor’s 2015 Design Lab clothing collection.
Federal Trade Commission, all Fifty States, and the District of Columbia v. Cancer Fund of America Inc., et al., No. 2:15-cv-00884-NVW (D. Ariz.)
Federal Trade Commission v. Amazon.com, Inc., No. 2:14-cv-01038 (W.D. Wash.) April 26, 2016
The FTC filed a complaint against Volkswagen alleging that the company violated the FTC Act when it deceived consumers through an advertising campaign promoting its supposedly “clean diesel” Volkswagen and Audi automobiles. The FTC alleges that Volkswagen fitted those cars with illegal emission defeat devices designed to mask high emissions during government emissions testing. The marketing campaign featured high-profile Super Bowl ads, online social media campaigns, and print advertisements that often target “environmentally-conscious” consumers.
Andrew Lustigman, head of the firm’s Advertising, Marketing & Promotions Practice Group, was quoted in the article “Under the Influence” published in Contently on April 20th, 2016, following the FTC’s Lord & Taylor settlement focusing on native advertisements and influencers.
Andrew Lustigman, head of the firm’s Advertising, Marketing & Promotions Practice Group, was quoted following the FTC’s Lord & Taylor settlement focusing on native advertisements and endorsements in the article, “FTC's Lord & Taylor Action Shows Perils Of New Ad Strategies,” published in Law360 on March 15, 2016.
Olshan Advertising Partner Andrew Lustigman was quoted by Digiday, a New York-based online publication that covers the digital marketing industry, on legalities involved in marketing junk food to kids through McDonald’s new VR Happy Goggles.
Bloomberg BNA Electronic Commerce & Law Report published “Social Media Considerations for Real Estate Companies” authored by Olshan Partners Andrew Lustigman and Mary Grieco.
CARU recommends modification to advertising despite disclaimer
Olshan Advertising, Marketing & Promotions Practice Group Leader Andrew Lustigman was extensively quoted in the Electronic Commerce & Law Report published by Bloomberg BNA addressing the outlook of social media advertising.
Everyone talks about crowdfunding. What type of crowdfunding, if any, is right for my business? Learn the trends and best practices of successful campaigns.
Andrew Lustigman to speak at IZEAFest 2015 on October 23, 2015.
Mobile Marketer Daily recently highlighted the Firm client alert from Olshan Advertising Partner Andrew Lustigman addressing the new social media and endorsement guidance from the FTC.
Olshan Advertising Partner Andrew Lustigman was quoted regarding FTC’s power to penalize companies for insufficient cybersecurity practices.
Advertisers may believe that claims contained in light-hearted or humorous advertising are immune from challenge.
Olshan Advertising, Marketing & Promotions Partner Andrew Lustigman was quoted in a Law360 article on the Federal Trade Commission’s revised advertising endorsement guidelines addressing paid product reviews on social media.
Eighth Circuit Rules On “Survey” Used To Promote Movie
As part of its recent bankruptcy proceeding, RadioShack sought to auction off its vast collection of personal information about its customers. However 38 states and the FTC objected to the sale on the grounds that it violated RadioShack's existing privacy policy. The limitations on the transfer of data RadioShack agreed to in an eventual deal with the states shows that companies need to be forward thinking regarding future transfers of data when crafting their data privacy policies.
The FTC recently updated its Endorsement Guides FAQs, entitled “The FTC’s Endorsement Guides: What People Are Asking”. As advertisers increasingly rely on third parties to promote their products and services, the revised FAQs provide guidance as to appropriate disclosures and compliance obligations that should be considered in connection with such marketing efforts. This highlights the revisions to the FAQs and discusses key steps advertisers should take to support their compliance efforts.
FCC schedules a vote on the commissioner’s proposals for June 18th.
Olshan Partner Andrew Lustigman and Associate Mason Barney Discuss Recent Actions for how Companies Approach Cybersecurity.
Despite obtaining an appellate ruling rejecting an across the board fixed substantiation requirement and an endorsement of first amendment rights to truthful promote certain health claims, POM is now seeking a rehearing from the broader appellate court on the issue of the constitutionality of POM’s advertising. While such a challenge is a long shot, the stakes are high for the FTC and marketers alike.
Oral arguments scheduled for October; Decision likely in 2016
A District Court has ruled that LeadClick Media, an affiliate marketing network, and its parent company, CoreLogic, Inc., must turn over $16 million they received from Leanspa LLC, an advertiser that sold purported weight-loss products.
Andrew Lustigman was an Editor for Self-Regulation of Advertising in the United States: An Assessment of the National Advertising Division.
Olshan Partner Andrew Lustigman authored an article published by Inside Counsel entitled, "An overview and the impact of the Consumer Privacy Bill of Rights."
Partners Andrew Lustigman and Howard Smith authored an article published by Inside Counsel entitled, "When self-regulatory remedies can be the better alternative."
Andrew Lustigman and Scott Shaffer Discuss TCPA Lawsuits and Implications on Telemarketers in new Inside Counsel article.
Proposal would require online merchants to change the way they do business.
The sufficiency of the advertisements should be evaluated by analyzing whether they pass the four P’s test.
Inside Counsel article on COPPA Ramifications.
Inside Counsel article on using online reviews as advertising
This Facebook change is just another reminder that brands need to be aware of the traditional legal rules governing promotional marketing, as well as the social media terms and policies.
Yoplait's challenge to Chobani's television and online advertising reminds that claims which expressly or implicitly disparage a competing product must be accurate and narrowly drawn.
Groupe SEB USA v. Euro-Pro, Case No. 14-137(WD Pa)
Plaintiffs Failed To Propose A Feasible Way To Identify Class Members
Pom Wonderful’s Lanham Act suit over pomegranate-blueberry drink to go forward.
Sprint also agrees to preventative measures.
Andrew Lustigman will Speak on City Bar CLE Panel on Sweepstakes, Promotions and Marketing on May 16, 2014.
FCC Creates Exception To TCPA’s Prior Express Consent Requirement.
In Gragg v. Orange Cab Company, decided on February 7, 2014 in the Western District of Washington, a class-action defendant accused of sending mass texting messages without prior consent was granted partial summary judgment on all claims under the Telephone Consumer Protection Act (TCPA).
In Shelton v. Restaurant.com, decided on November 4, 2013, the Third Circuit Court of Appeals held that a one-year expiration date for a restaurant gift certificate violated a New Jersey statute with a cumbersome name, the Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA).
We blogged about how the Sixth Circuit Court of Appeals opened the door for Telephone Consumer Protection Act (TCPA) class actions in Michigan by ruling that state prohibitions on class actions had no effect on federal lawsuits.
On September 30 - October 2, 2013 the Advertising Self-Regulatory Council will hold their NAD, CARU, and ERSP Annual Conferences.
Recently proposed legislation in New York and in Maine, if passed, would impact businesses that provide subscription arrangements. These laws reflect a growing legislative trend to regulate goods and services billed on an auto-renewal basis.
Advertisers typically take comfort if their advertising has been approved by the governing regulatory agency. A recent NAD decision in the pet care context places that long-standing belief into jeopardy.
The FTC has been seeking public comment and input for a number of years on whether its regulations under the Children's Online Privacy Protection Act of 1998 need to be revised or updated to address changes in technology and business.