Key Updates:

  • California’s “drip pricing” law, which will limit how businesses can present fees and prices, is set to come into effect July 1, 2024.
  • On May 8, 2024, California Attorney General Rob Bonta issued guidance on the new law.
  • On May 20, 2024, Minnesota Governor Tim Walz signed a bill banning practices related to hidden and deceptive fees. The law will come into effect January 1, 2025.
  • Several other states, including Connecticut and New York, have also introduced legislation on fees and advertised prices.
  • At the federal level, on April 24, 2024, the Federal Trade Commission (FTC) held an informal hearing on its proposed rule prohibiting unfair or deceptive fees, first announced in October 2023.
  • President Biden has also targeted so-called junk fees, highlighting his administration’s efforts in March’s State of the Union address.
Continue Reading From California to New York, Junk Fees Continue to Be a Hot Topic for Legislators and Regulators

Key Updates:

  • On May 1, 2024, BBB National Programs’ Children’s Advertising Review Unit (CARU) issued a compliance warning stating that its Self-Regulatory Guidelines for Children’s Advertising (Advertising Guidelines) and Self-Regulatory Guidelines for Children’s Online Privacy Protection (Privacy Guidelines) apply to artificial intelligence (AI) in advertising and data collection targeted at children under 13.
  • CARU warns brands that it will strictly enforce its Advertising Guidelines and Privacy Guidelines in connection with the use of AI to protect children, who are more vulnerable to advertising and whose data collection poses special concerns.
Continue Reading CARU Issues Warning About Using AI in Child-Directed Advertising and Data Collection

In an unusual decision[1] this month, the National Advertising Division of BBB National Programs (NAD) recommended that Planting Hope Brands (PHB), a plant-based food and beverage company, discontinue its use of the registered trademark symbol or ® on the packaging and advertising for its product RIGHTRICE, a plant-derived flour-based kernel. 

Continue Reading Is Your Trademark Notice an Advertising Claim?

Key Updates:

  • Earlier this month, the Department of Justice (DOJ) adopted a final rule under Title II of the Americans with Disabilities Act of 1990 (ADA) aimed at ensuring web content and apps are accessible to people with disabilities.
  • Specifically, the new rule requires that public entities covered by Title II, which includes state and local governments as well as special purpose districts, Amtrak, and other commuter authorities, conform their websites and apps to the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA. WCAG 2.1 is widely accepted as an industry standard for achieving accessibility online and forms the basis for other regimes such as the EU’s harmonized standards under its Web Accessibility Directive.
  • Public entities must comply within two to three years, depending on their size. The DOJ’s rule only contains narrow exceptions, as described below.
  • The DOJ’s move foreshadows the potential for similar action under Title III of the ADA, which applies to public accommodations owned by private entities, such as restaurants, shops, movie theaters, daycares, and private hospitals.
Continue Reading DOJ Adopts Accessibility Standards for State and Local Government Web Content

Key Takeaways:

  • Disclosure of a payment or other material connection (e.g., via #Ad) must be prominent and “before the fold” for social media posts.
  • Influencers must include applicable disclosures in video content (not merely in the caption that accompanies the video).
  • A brand cannot repost influencer content without disclosing that the content has been paid for.
  • Investors must disclose their material connections to brands in social media posts (and cannot directly contradict such disclosure with a statement that the post is “not an ad”).
Continue Reading National Advertising Division Flags Social Media Disclosure Obligations for Wonderbelly, Its Influencers, and Investor Demi Moore

With the first quarter of 2024 in full swing, it is a good time for brands to revisit marketing compliance strategies to minimize the risk of potential class actions, regulatory enforcement actions, and competitor challenges. This Update highlights hot topics in advertising law for 2024.

Click here to read the full Update.

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