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Amanda Beane serves as co-chair of the Advertising, Marketing & Promotions practice.

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

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

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 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