NEWSLETTER: Advertising, Marketing & Promotions, Summer 2008

Thank you for the tremendous positive feedback we received from our initial electronic newsletter. This issue once again seeks to provide a snapshot of recent noteworthy articles, news events, and upcoming presentations by our attorneys. Included below are articles on User-Generated Content Promotions, Mobile Marketing Sweepstakes, the New York Internet sales tax, negative option enforcement, new UK advertising restrictions, and fantasy league developments. We hope these articles assist you in your business practices, and we welcome any questions or feedback.

RECENT ARTICLES OF INTEREST/DEVELOPMENTS

User-Generated Content Promotions
We are proud to provide you with our article Legal Considerations For Promotions Involving User Generated Content, which appeared in the June 2008 American Bar Association's The Practical Lawyer. The article discusses the legal factors to be considered in using this increasingly popular promotional marketing technique.

Mobile Marketing/Sweepstakes Marketing We continue to track on our blog the latest developments in the SMS class actions being litigated in California and Georgia. Click here for the latest developments. Recently, Andrew Lustigman was featured in The National Law Journal, Place your bet: Are TV games a lottery? which covered the gambling aspects asserted in the class actions being litigated in California.

Amazon.com Sales Tax Developments
The New York Online Sales Tax (commonly known as the Amazon tax because of its presumed target Amazon.com) went into effect on June 1, 2008. Click here for the latest developments. Importantly, the New York Department of Taxation has issued a Technical Service Bulletin that provides important guidance relating to the new legislation. Special Counsel Jonathan Ezor was prominently featured in Newsday in an op-ed piece which predicted that the tax would result in termination of New York affiliates. His prediction came true when Overstock.com took this action.

Negative Option Enforcement
The FTC has been very active against Internet companies that offer products and services utilizing a negative option/opt-out enrollment option. Adam Solomon’s article explores recent enforcement action and outlines general legal principles to consider in formulating programs utilizing this enrollment method.

UK Advertising Restrictions
The UK has enacted sweeping new consumer protection rules that provide civil and criminal penalties for a variety of marketing practices. The new law, known as the Unfair Trading Regulations 2008, was enacted on May 26th and provides for statutory fines and up to two years imprisonment for violation and 31 different commercial practices which are in all circumstances considered to be unfair. Sheldon Lustigman explores this development in an article posted here.

Fantasy League Developments The Supreme Court has declined to consider an appeals court ruling that allowed fantasy sports websites to use the names and statistics of professional athletes without the permission of the sports leagues or players unions. Scott Shaffer’s article on the subject can be found here.

OLSHAN NEWS

Chambers USA Andrew Lustigman has been named an industry leader and notable practitioner in his primary practice area, advertising law. The ranking appears in the internationally recognized Chambers USA Guide: America's Leading Business Lawyers 2008, a legal directory of U.S. lawyers and law firms published by London-based Chambers & Partners. Chambers USA recognized Andrew as a leader in the area of advertising law. According to Chambers, he is a first-rate player within the field, renowned for the superb job he does on behalf of his clients.' His boutique firm has a particular focus on advertising and promotional marketing law nationally, and he has recently won several significant decisions and achieved favorable settlements on a range of matters. Clients draw attention to the group's fantastic track record in defending both government enforcement actions and false advertising challenges from competing businesses.”

Upcoming Events

Andrew Lustigman will lead a panel including FTC Senior attorney Thomas Cohn and NAD attorney Jennifer Fried on Cosmetic Marketing Law Developments at the SRI/American Lawyer Media's 5th Annual Cosmeceuticals Conference scheduled for June 26-27, 2008 at the Marriott Eastside Hotel in NYC. Topics to be covered include analysis of controversial claims in cosmetic marketing, analysis of the FTC/FDA dual jurisdiction and respective roles, regulatory enforcement priorities, the role of the self-regulatory process, and strategies for marketing cosmetics in a compliant manner.

This newsletter is a publication of Olshan, a law firm with offices in New York and New Jersey. This newsletter and the referenced articles are intended to provide a general overview of legal issues. It is not intended to cover all laws or to serve as legal advice or as a replacement for specific advice of counsel. The views, opinions, statements, analysis and information contained in this outline do not necessarily reflect the views of Olshan or any of its past, present and future clients. © MMVIII by Olshan.

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Originally published by The Lustigman Firm, P.C. and has been re-branded and edited to conform and to correct certain references.