The failure to comply with National Advertising Division (“NAD”) review processes typically results in a referral to the Federal Trade Commission (“FTC”). This strong enforcement deterrent results in a reported 97% compliance rate with NAD decisions. Recently, NAD has been expanding the agencies to which it refers advertisers that have failed to comply with its rulings or participate in its processes. As discussed below, NAD recently referred the advertising claims of a crisis pregnancy center to the Massachusetts Attorney General for possible enforcement action. In addition, NAD has developed a referral relationship with leading social media platforms, such as Meta, resulting in prompt enforcement of NAD’s recommendations.
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.
McDonald’s and Wendy’s defeat lawsuit over burger depictions
Recently, we blogged about a lawsuit that accused Arby’s of false advertising by serving roast beef and brisket sandwiches that contained significantly less meat than what was depicted in advertisements. Arby’s may be breathing a sigh of relief right now because McDonald’s and Wendy’s have just prevailed in a similar lawsuit that targeted the depictions of their burgers.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, was quoted in a Corporate Counsel article (subscription required) on the ruling by the U.S. Court of Appeals for the Fifth Circuit that the Biden administration had likely violated the First Amendment for “coercing” social media platforms to take down “disfavored” content from their sites that it deemed to be misinformation about topics such as COVID-19 or the 2020 elections.
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 will present a webinar on myLawCLE entitled “The Nuts and Bolts of Structuring and Promoting a Lawful Sweepstakes,” on September 27, 2023, from 3-4 p.m. (EST). In this CLE webinar, Andy and Morgan provide an introduction to sweepstakes law, covering the key legal areas of concern that arise in structuring a sweepstakes, including lottery law and gambling concerns and how to address them. Topics they will discuss include why bespoke rules are important and key provisions that should be incorporated when preparing a sweepstakes, as well as how to promote a sweepstakes on Instagram, Tik Tok and other social media platforms.
You can register for this CLE webinar here.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, and Jeremy King, Chair of Olshan’s Insurance Coverage Practice, published an article in Bloomberg Law (subscription required) entitled “Social Media Influencers Must Weigh Liability Insurance Options.” In the article, the authors warn that certain promotional behaviors undertaken by social media influencers could potentially expose brands to legal liabilities. Accordingly, many brands require influencers to purchase ...
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in Bloomberg Law (subscription required) on how the launch of the new social media app Threads may feature some of the same pitfalls for brands, though it means to offer a “less toxic” alternative to Twitter. Accordingly, it is incumbent upon brands to remain hyper-cognizant of the spaces in which they advertise, including on this new platform from Facebook parent company Meta. “By combining the interactivity ...
Defendant disputes the factual basis for the precedential ruling
Tom Brady and Gisele Bundchen join Kim Kardashian and Floyd Mayweather as defendants.
* Rachel Gold is a law clerk in the Corporate/Securities Law practice group.
Following up on its action against other celebrities who have promoted crypto investments without disclosing their compensation interest, the Securities and Exchange Commissions (“SEC”) announced “unlawful touting” charges and Order against reality star Kim Kardashian for promoting a cryptocurrency on social media without acknowledging that she was being compensated for the post. This enforcement action is a reminder that it is not just the Federal Trade Commission (“FTC”) who is enforcing compensation disclosures on social media.
The Federal Trade Commission (“FTC”) is set to issue updates to both its Endorsement Guides and .com Disclosure Guidance. The proposed updates to both guidance documents signifies the FTC’s ongoing attention to online and social media advertising, as the regulator takes steps to bring its guidance into focus with contemporary advertising issues.
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.
Olshan attorneys Andrew Lustigman, Mary Grieco and Morgan Spina will present a webinar entitled “The Legal Side of the Digital Marketing World” hosted by the Social Media Association.
Olshan Advertising partners Andrew Lustigman and Scott Shaffer, along with Olshan Intellectual Property partner Mary Grieco—all of whom are members of Olshan’s Brand Management & Protection Practice Group—will present a webinar entitled “Marketing in the COVID-19 Era” for the Bronx Third Avenue Business Improvement District on December 16 at 9am. Areas to be covered include ecommerce marketing, advertising claims, social media marketing, and data privacy, followed by a Q&A.
The New York Law Journal published an Expert Opinion article authored by attorneys Andrew Lustigman and Morgan Spina, entitled “Avoiding Viral Fashion Promotion Malfunctions.”
Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in The Legal Examiner on the recent class action lawsuit filed against TikTok by a group of parents who are suing the social media app under allegations that it illegally collects and shares identification information to send to China.
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.
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.
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.
Influencer marketing is one of the most popular marketing tools for companies in today’s market. Influencers can make substantial sums of money for just one post. While this is a great way for influencers to earn a living and for companies to get their message across to today’s consumers, there are risks involved with social media marketing if not executed properly. The Federal Trade Commission (“FTC”), among other responsibilities, works to stop deceptive advertising. As we have previously reported, everyone involved in social media marketing needs to be sure that influencers comply with the FTC’s Enforcement Guidelines (the “Guidelines”).
Ariana Grande has filed a lawsuit against Forever 21 and its related beauty brand, Riley Rose (founded by the daughters of Forever 21 founder, Do Wan Chang), alleging that the fast fashion and beauty brands capitalized on the success of Ms. Grande’s Thank U, Next album by posting images of Ms. Grande on the brands’ social media accounts as well as images of a model bearing a striking resemblance to Ms. Grande.
Authored by Kenneth Silverman and intern Yousraa Belabed
The Electronic Retailing Self-Regulation Program (“ERSP”) has recommended that Alo, LLC (“Alo Yoga”) modify the Instagram posts of certain influencers of its products to disclose the material connection between Alo Yoga and the influencers.
The SEC’s Office of Investor Education and Advocacy warns investors to be skeptical of endorsements from famous influencers marketing new investment opportunities.
Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in a Legaltech News article titled "Fake Accounts Mean Litigation Could Be a Key Part of Facebook's Future"
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.
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.
Floyd Mayweather, Jr. Failed To Disclose He Was Paid For Social Media Posts
Olshan’s Advertising, Marketing & Promotions Practice Group chair Andrew Lustigman will present a live webinar for Lawline.com, an online CLE platform, on June 26th. Topics that Mr. Lustigman will explore include an examination of recent developments in social media marketing (with a particular focus on brands and influencers who utilize social media to promote goods and services), a review of the various regulations that govern social media marketing, and how to develop the best practices for compliance in light of the latest legal developments. CLE credits will be awarded for participation in the presentation.
You can register for this webinar here.
Andrew Lustigman and Morgan Spina published an article in Leading Internet Case Law entitled “Court Rules Embedded Photos on Websites May Constitute Infringement.”
Andrew Lustigman and Morgan Spina published an article in BNA Big Law Business entitled “Understanding Advertising Disclosure Obligations Within Virtual Reality.”
Over the last several years, the use of social media as a vehicle for advertising has grown exponentially. As discussed in prior blog posts, examples of which you can find here and here, the Federal Trade Commission (“FTC”) has released guidelines pertaining to such paid social media posts, requiring that any material connections between advertisers/brands and those social media users posting the content is clearly and conspicuously disclosed.
Andrew Lustigman Is the featured legal source of the Racked article "Brands Want Students to Sell to Each Other"
Andrew Lustigman will speak at the 5th annual Caribbean & Latin American Corporate Counsel Summit to be held in Miami on November 16-17.
Brands need to carefully plan all promotions and to expect the unexpected with social media.
The FTC is increasing its scrutiny of brands' use of social media influencers who fail to disclose to a material connection between the brand and the influencer.
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.
In the wake of recent public dialogue about whether or not social media plays a role in the outcome of public events, this week, German Justice Minister, Heiko Maas, has proposed a law that would see social media sites face fines of up to 50 million euros if they fail to remove illegal content from their platforms. This comes on the heels of analogous discussions in the U.S. about social media platforms' role in disseminating, and obligations to review and remove, now-coined “fake news” content. Most recently, on March 13th, 2017, Facebook CEO, Mark Zuckerberg, again defended his company against assertions that by failing to remove false content from the platform, Facebook plays a role in promulgating “fake news.” Following a November 2016 Facebook post in which Zuckerberg addressed the need to weigh the removal of “fake” or illegal content from the platform against the preservation of freedom of expression, Zuckerberg touted accusations that Facebook wants “fake news” as “crap.” Commenting at a recent talk at North Carolina A&T State University, Zuckerberg rejected the notion that Facebook views “fake news” articles as a means of inducing more “clicks.”
Is there a constitutional right to social media? The ongoing dialogue surrounding First Amendment concerns born out of the Internet and social media was the focus of Supreme Court oral arguments on Monday, February 27, 2017. Discussing a North Carolina law that prohibits registered sex offenders from participating in social media sites like Facebook and Twitter, the justices’ comments seemed to suggest a likelihood that they would strike down such a law on First Amendment grounds.
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 October 27, 2016, the National Business Institute will present an audio webinar entitled “Social Media, Native Advertising and Sponsored Content Law.”
Andrew Lustigman, head of the firm’s Advertising, Marketing & Promotions Practice Group, was quoted in Fashion Law Blog in separate articles titled “A How-To Guide for Properly Disclosing Your Sponsored Posts” and “EXCLUSIVE: The Dirty Advertising Practices of the Industry's Biggest Brands, Bloggers” addressing native advertising and the FTC, social media influencers and bloggers not adhering to appropriate disclosure guidelines.
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.)
Bloomberg BNA Electronic Commerce & Law Report published “Social Media Considerations for Real Estate Companies” authored by Olshan Partners Andrew Lustigman and Mary Grieco.
The FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements and business guidance detailing the agency’s position with respect to native advertising reinforces advertisers’ obligation to be transparent and authentic. Moreover, with the increasing prevalence of native ads, the FTC’s announcements likely will trigger enforcement actions in the not too distant future.
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.
Olshan Advertising Partner Andrew Lustigman spoke at prestigious American Association of Law Schools’ (“AALS”) annual meeting
Brands must actively monitor the posts by social media influencers, particularly where there is a business relationship, either directly or indirectly, between them.
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, 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.
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.
The sufficiency of the advertisements should be evaluated by analyzing whether they pass the four P’s test.
Ascertaining whether the appropriate rights have been secured need to be carefully considered, even if the marketer is seeking to act in real time.
Andrew Lustigman discusses legal issues and recent cases in social media.
A recent 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.
Digital Social Media Promotions Law Update will offer an analysis of the current state of legal issues impacting social media campaigns.
The Ninth Circuit’s ruling allows selective posting and arranging of content but does not preclude future lawsuits.
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.
Networking. Personal involvement. Consistency. Common sense. Making it about the people.
Entry into a contest to receive a prize in exchange for endorsing a product through social media constitutes a material connection and the endorsement needs to be disclosed.
Jonathan I. Ezor continues his frequent presentations on the business and legal aspects of social media.