Key Update:

  • A federal court in New York denied Danone Waters of America’s motion to dismiss a class-action lawsuit accusing it of falsely advertising Evian-branded bottled water as “carbon neutral.”
  • The putative class-action lawsuit claims that the Evian water bottles are not actually carbon neutral due to alleged emission of carbon dioxide during manufacturing.
  • The court found that consumers could be confused by the term “carbon neutral,” noting that understanding Evian’s meaning “expects too much” from consumers.
Continue Reading Judge Rules Water Bottler Must Face Class Action Over “Carbon Neutral” Claims

Key Update:

  • The Federal Trade Commission (FTC) issued warning letters to the American Beverage Association (AmeriBev), The Canadian Sugar Institute, and 12 health influencers, citing concerns over inadequate disclosures in Instagram and TikTok posts promoting aspartame or sugar-containing products.
  • The FTC claimed the trade associations might not have adequately disclosed influencer relationships, emphasizing the necessity for disclosures in both audio and text if a representation is conveyed through both audible and visual means.
  • The FTC also discouraged reliance on built-in platform disclosure features, noting that such features do not guarantee an effective method for influencers to disclose material connections.
Continue Reading FTC Warns Trade Associations and Influencers About Social Media Posts Promoting Sugar

Key Updates:

  • On October 11, 2023, the FTC proposed a new rule that it claims will end deceptive “junk fees.” The FTC defines junk fees as “bait-and-switch pricing tactics” that conceal required charges while misleading consumers about the actual price of items.
  • The FTC claims the proposed rule is expected to save consumers more than 50 million hours each year in the search for total price of items, particularly in live event ticketing and short-term lodging.
Continue Reading Junk Fees Under Scrutiny: FTC Issues Proposed Rulemaking

The Web Content Accessibility Guidelines (WCAG) are an international standard used to assess the accessibility of web content for people with disabilities. WCAG 2.1, which was adopted on June 5, 2018, has been the prevailing version of the guidelines relied on by courts, regulators, and industry professionals. On October 5, 2023, the nonprofit standards organization that publishes WCAG released WCAG 2.2, which will likely be seen as the presumptive version of choice in the coming months and years.

Continue Reading New Version of Web Content Accessibility Guidelines Released

The FTC released a staff paper in September 2023 directed at businesses and social media influencers who promote products to children online. The paper includes findings from the FTC’s October 2022 workshop, “Protecting Kids From Stealth Advertising in Digital Media,” which addressed the issue of blurred advertising that makes it hard for children to distinguish advertising content from other digital content.

Continue Reading FTC Staff Perspective: Preventing Blurred Advertising to Children

Key Takeaways:

  • Experian Consumer Services, operating as ConsumerInfo.com, agreed to pay a $650,000 civil penalty for alleged violations of the CAN-SPAM Act by sending marketing emails without an opt-out option.
  • This settlement serves as a reminder that all marketing emails must contain an opt-out and that the Federal Trade Commission (FTC) will use its enforcement tools to protect consumers from violations of the CAN-SPAM Act.

Under the CAN-SPAM Act, brands must provide a way for consumers to opt out of commercial email messages. However, according to a complaint filed by the U.S. Department of Justice (DOJ) on behalf of the FTC, Experian sent marketing emails without explicit opt-out instructions. Further, some emails included a message at the bottom of these emails stating that they are being sent because they contain important account information, when, in reality, the emails promoted Experian’s products or services.

In addition to the $650,000 fee, the proposed order prohibits Experian from sending commercial emails that do not include an opt-out option. The FTC’s press release emphasized that signing up for services should not result in unwanted marketing communications that do not contain a right to unsubscribe. The FTC’s pursuit of CAN-SPAM violations underscores that brands should check their emails to ensure compliance with the CAN-SPAM Act.

The Federal Trade Commission recently finalized updates to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address the FTC’s latest thinking about how the truth-in-advertising standards under the FTC Act apply to endorsement and review-related issues.

The updated Guides expand or clarify guidance related to (1) who can be considered an endorser, what qualifies as an endorsement, and who can be liable if the endorsement is deceptive; (2) consumer review practices; (3) what counts as “clear and conspicuous” for endorsement disclosures; and (4) when and how to disclose paid and other material connections between brands and endorsers.

Click here to read the full Update.

Key Update:

  • Publishers Clearing House (PCH), a direct marketing company known for its sweepstakes, has agreed to pay $18.5 million as part of a settlement with the Federal Trade Commission (FTC).
  • The settlement follows allegations of deceptive practices, such as the use of “dark patterns” to encourage sweepstakes entries and purchases.
  • As part of the settlement, PCH agreed to redesign its user interface in order to avoid confusion and ensure transparency.
Continue Reading FTC’s Secures $18.5 Million Settlement With Publishers Clearing House for Alleged Dark Pattern Sweepstakes Tactics

Key Update:

  • Online marketplaces must comply with key requirements in the Act by June 27, 2023, to avoid penalties for noncompliance.
Continue Reading INFORM Act Addresses Online Marketplace Transparency With Harsh Penalties for Noncompliance

After sharing its initial proposals on videoconferencing platform accessibility (described in our previous blog post), on June 8, 2023, the Federal Communications Commission (FCC) voted to require videoconferencing platforms to comply with accessibility requirements under the Communications Act and agency rules governing interoperable videoconferencing services (IVCS). The corresponding Report and Order (R&O) was released on June 12, 2023, as well as a Notice of Proposed Rulemaking (NPRM) that seeks, among other things, to amend the FCC’s rules to better define the steps necessary to make an IVCS accessible to those with disabilities. The FCC also issued a separate Order granting telecommunications relay services (TRS) providers a limited waiver of the video relay services (VRS) privacy screen rule, which limits when VRS users can turn off their video when not actively participating in a video conference.

Continue Reading FCC Requires That Videoconferencing Platforms Comply with Accessibility Requirements