Category - "Marketing"

Recap: 2023 ANA Annual Advertising and Marketing Law Conference

Share

If artificial intelligence is so great, why can’t it reliably predict the weather?

The weekend has just closed on another very rainy Floridian ANA Masters of Advertising Law Conference (Last year we had a hurricane, so this would qualify as an uninspiring upgrade). The Masters Conference is the largest advertising, marketing and promotion law conference in the nation, bringing together major brands, storied advertising agencies, and prominent regulators to discuss cutting-edge topics impacting the industry. Each year – not by design but by happenstance – a different theme is featured. This year, to no one’s surprise, the focus was on AI.

While not every session discussed AI in depth, most speakers devoted some time to the subject throughout the 3-day event.  Panelists confronted questions like: does algorithmic bias, increasingly employed in various industries, constitute an unfair trade practice?  How will regulators view advertising claims based on next gen tech?  What copyright traps exist for the unwary utilizing AI to generate advertising content?  Are US and international privacy laws evolving fast enough to keep up with new challenges posed by AI?  And while it had nearly zero to do with AI, the conference would have felt incomplete without a discussion of what drag queens can teach advertising lawyers about intellectual property protection.  Many learned more about Cardi B’s album covers during that session than they could have imagined in their wildest dreams.

There is no doubt that AI will affect the advertising and marketing landscape for years to come.  Like the metaverse (last year’s theme) and crypto assets (the year before that), these issues are not new.  But despite AI having been around for some time, the leaps forward that generative AI applications have made this year appear poised to significantly transform the landscape of advertising content creation and delivery.  President Biden’s October 30th Executive Order is one of the first major steps being taken to set limits on AI technologies while funneling their potential for good.  Among other things, that Order directs the U.S. Patent and Trademark Office and U.S. Copyright Office to issue a report on “potential executive actions relating to copyright and AI.”

We will of course be following this issue closely as the technology – and its implications for intellectual property and advertising issues – evolves.  But we will hold our concerns regarding AI singularity at bay until such time as we receive an accurate forecast for the next ANA Conference.  (It’s in Arizona, so we’re blithely optimistic.)

Until next year!

The FTC’s Updated Endorsement Guides: Do They Say More Than We Already Know?

Share

On June 29, the Federal Trade Commission (FTC) published its updated Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Guides”), together with an FAQ document, FTC’s Endorsement Guides:  What People Are Asking (“FAQ”).  One day later, it announced its proposal for a new Trade Regulation Rule on the Use of Consumer Reviews and Testimonials (“Trade Regulation”).  In the spirt of the FTC’s FAQ, we figured we would post a brief one of our own, highlighting some of the big changes (and non-changes).

Can you please explain what’s going on in one paragraph or less?

As background, the Guides explain the FTC’s view on the propriety of endorsements and testimonials made by third parties on behalf of advertisers under Section 5 of the FTC Act, which prohibits unfair and deceptive trade practices.  The Guides were last updated in 2009.  This update therefore brings a refresh and clarifies the FTC’s view on various scenarios that have arisen since 2009 given changes in technology and marketing practices.  The Trade Regulation, by comparison, is focused on the narrow topic of fake consumer reviews, which are singled out because (a) they have been a particular focus of the FTC of late; and (b) the regulation would clearly entitle the FTC to seek civil penalties for violations (whereas its ability to do so under Section 5 of the FTC Act is somewhat murky).

Continue reading “The FTC’s Updated Endorsement Guides: Do They Say More Than We Already Know?”

Under Review: The FTC’s Focus on the Fakes

Share

You are thinking about buying a new laptop, or you want to try a new restaurant that’s been open a few months, so what do you do first? You check the online reviews, of course. Most consumers rely heavily on online reviews to make purchases and try new services, but how can you be sure the reviews you see are actually written by a real customer? And wouldn’t you want to know if the customer was paid or given free product in exchange for that review? The proliferation of online shopping platforms and social media have increased opportunities for consumers to find information about potential products they want to buy. However, it also makes it easier for companies to manipulate reviews or endorsements to make their products look better or their competitors look worse. Luckily, the Federal Trade Commission (FTC) is currently prioritizing this issue, through regulatory channels, enforcement actions, and litigation.

For background, when an advertiser uses an endorsement or review in connection with its products or services, there are guidelines to follow set forth by the FTC (the Guides Concerning the Use of Endorsements and Testimonials in Advertising). The FTC Endorsement Guides emphasize the basic principle of truth in advertising: that endorsements must be honest and not misleading. The Guides further state that the endorsement must reflect the true opinion of the reviewer, who must actually have experience with the product or service, and that a material connection between the reviewer and the company needs to be disclosed, if that fact would matter to the purchaser. While the Guides are not regulations, and have no civil penalties for a violation, the FTC can investigate whether the practices are deceptive or unfair under the FTC Act if an advertiser does not follow the Guides.

Continue reading “Under Review: The FTC’s Focus on the Fakes”

Thinking About Engaging an Influencer for Your Next Promotion? Plan Ahead!

Share

Those running promotions such as sweepstakes or contests on social media may seek to engage influencers, or individuals with significant social media followings, to enhance their promotions’ visibility and boost engagement. But before doing so, there are a variety of rules and regulations to consider and evaluate, including Federal Trade Commission (“FTC”) rules relating to misleading, deceptive, and unfair advertising, state-specific rules relating to promotions, and social-media-platform-specific rules, among others. This post gives a high-level overview of issues to consider before engaging influencers to boost your next contest or promotion.

Continue reading “Thinking About Engaging an Influencer for Your Next Promotion? Plan Ahead!”

State AGs Fail in Objections to Proposed Settlement in Class Action Challenging Godiva’s Labeling Practices

Share

The last thing the parties to a class action settlement want to see is an objection from state Attorneys General (AGs).  AG objections to class action settlements are relatively rare and courts tend to give AG objections more weight than objections from private parties.  Not all AG objections are successful, however, and in the recent consumer fraud case of Hesse v. Godiva Chocolatier, Inc., No. 1:19-cv-972-LAP (S.D.N.Y.), a six-state objection filed by the AGs of Florida, Idaho, Maryland, New Jersey, Ohio, and Utah failed to persuade Judge Loretta Preska to reject the proposed settlement.

Hesse concerned Godiva’s use of the word “Belgium” in labeling and promoting its products.  According to the complaint, this practice led consumers to believe, incorrectly, that Godiva’s chocolates are made exclusively in Belgium and to pay higher prices for these products than they otherwise would have.  The parties’ proposed settlement of those claims is fairly standard stuff.  Anyone who purchased Godiva chocolate products between 2015 and last year could file claims to recover $1.25 per purchase.  Class members with proof of purchase could recover up to $25 (for 20 purchases); those without proof were capped at $15 (for 12 purchases).  Plaintiffs claimed actual damages to be $0.46 per purchase, so they characterized this relief as more than full recovery.

Continue reading “State AGs Fail in Objections to Proposed Settlement in Class Action Challenging Godiva’s Labeling Practices”

2021 Year in Review: OPDP Enforcement Actions Involving Prescription and Biological Products

Share

The Food and Drug Administration’s Office of Prescription Drug Promotion (OPDP) issued a total of six letters in 2021 — four Untitled Letters and two Warning Letters — to pharmaceutical or biologics companies for promotional materials that allegedly misbranded prescription drug or biologics products. The two Warning Letters issued in 2021 addressed prescription drug promotion. Two of the Untitled Letters also addressed prescription drug promotion, while the other two letters addressed biologic product promotion.

OPDP also sent six letters in 2020; however, the majority that year (four) were Warning Letters, with only two being Untitled Letters. Both Warning and Untitled letters are made public on FDA’s website. Warning Letters are issued for violations of regulatory significance that may lead to enforcement action if not promptly and adequately corrected, whereas Untitled Letters cite violations that do not rise to the threshold of regulatory significance warranting a Warning Letter. Untitled Letters serve as the initial notification that FDA has taken notice of a violation and allow the company to come into compliance without further FDA regulatory action. Historically, OPDP has relied more heavily on Untitled Letters. 2020 was an outlier year with four Warning Letters versus two Untitled Letters, but 2021 signified a return to normalcy, as the agency issued twice as many Untitled Letters as Warning Letters.

Continue reading “2021 Year in Review: OPDP Enforcement Actions Involving Prescription and Biological Products”

Californiafying New Jersey’s Consumer Protection Laws

Share

Starting now, national advertisers and retailers may want to pay the same attention to legislative and judicial developments in New Jersey that they long have paid in California.

New Jersey’s Governor, Phil Murphy, came into office in 2018 explicitly promising to remake New Jersey into “the California of the East Coast.”  Recently reelected and holding leadership posts in both the National Governors Association and Democratic Governors Association, Governor Murphy is building a national profile.

Continue reading “Californiafying New Jersey’s Consumer Protection Laws”

Launching a Sweepstakes or Contest on Social Media – What You Should Know

Share

As discussed on our blog previously, here and here, a promotion sponsor must finalize Official Rules before a promotion begins. But using a third-party social media platform to administer your promotion or accept entries raises additional issues that must be considered, particularly when the promotion involves the submission of user-generated content (“UGC”).

Using a social media platform to administer your promotion raises two additional issues: (1) ensuring compliance with the platform’s specific promotion requirements; and (2) ensuring that the sponsor is protected from liability if the promotion involves UGC. This blog provides a high-level overview of issues to consider before administering your promotion on a third-party social media platform, and in particular when your promotion involves submission of UGC.

Continue reading “Launching a Sweepstakes or Contest on Social Media – What You Should Know”

Antimicrobial Marketing Claims: What You Need to Know to Mitigate the Risk of EPA Enforcement

Share

Since the SARS-CoV-2 pandemic began, many companies have continued to develop antimicrobial products and devices to address health and safety concerns. Many of those companies are surprised to learn that the way in which they are marketing their products may subject them to regulation by EPA under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

Continue reading “Antimicrobial Marketing Claims: What You Need to Know to Mitigate the Risk of EPA Enforcement”

Environmental Marketing Claims – It’s Not Easy Being Green

Share

It’s April, which means it’s time for Earth Day.  But for so many consumers, sustainability is top of mind all year.  Consumers are constantly seeking out products and services that they can feel good about using and purchasing.  And marketers want to tout what their company is doing to be good to the environment.  As a result, the marketplace is flooded with claims that our household cleaners are “non-toxic” and our packaging is “recyclable” along with many other environmental benefit statements for products and services.

To avoid what’s commonly known as “greenwashing,” marketers need to ensure that statements made about the environmental benefit of their products or services are clear, truthful, and evidence-based.  A top resource in this area is the Federal Trade Commission’s “Green Guides,” which can help companies avoid making environmental benefit claims that can attract regulators and mislead consumers.  While the Green Guides are not FTC regulations, they provide detailed guidance on the types of claims that the FTC considers deceptive under Section 5 of the FTC Act, which broadly prohibits “unfair or deceptive acts or practices in or affecting commerce.” (15 U.S.C. § 45(a)(1).)  Although these Guides have not been updated in almost 10 years, they remain instructive when it comes to a review of environmental benefit claims.

Continue reading “Environmental Marketing Claims – It’s Not Easy Being Green”