‘Tis the season for retailers to set best practices to avoid class actions, regulatory enforcement actions, and competitor claims. Ring in the new year with these top five U.S. advertising and marketing law takeaways.
Ad Law Resolutions for 2022
FTC Issues Enforcement Statement on Recurring Subscription Programs and Dark Patterns
Key Takeaways:
- The FTC’s new Enforcement Policy Statement provides a roadmap for how the FTC may enforce against allegedly unfair and deceptive practices related to automatically recurring subscriptions.
- The Enforcement Policy Statement may indicate a more aggressive approach by the FTC toward recurring billing and subscription programs.
Gender-based Pricing
Jason Howell and Amanda Beane team up with Mark Richardson from Target Corporation to discuss the New York state Pink Tax law and its application to retailers and brands. Jason, Amanda, and Mark also discuss best practices for in-house counsel, including navigating working from home during the pandemic.
Advertising Disputes—An Alternative to Litigation
For 50 years, the National Advertising Division (NAD) has been at the forefront of monitoring national advertising, enforcing high standards of truth and accuracy, and resolving advertising disputes (typically between competitors) to build consumer trust and support fair and truthful marketing. In this episode, Jason Howell and Amanda Beane talk with Vice President of the
California Passes Updated Automatic Renewal Law
Key Takeaways:
- On October 4, 2021, California passed an amended automatic renewal law that will require businesses to follow stricter cancellation and notice requirements for subscription-based products and services.
- The updated law goes into effect on July 1, 2022.
Continue Reading California Passes Updated Automatic Renewal Law
FTC Issues Notice of Penalty Offenses Warning Companies to Comply with Endorsement Requirements
Key Takeaways:
- FTC sends Notice of Penalty Offenses to advertisers warning that unfair and deceptive acts and practices related to endorsements could trigger penalties of up to $43,792 per violation.
- Advertisers should review and refresh their policies, trainings, and compliance programs for endorsements, influencers, and consumer reviews to ensure compliance with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides) and related FTC guidance and notices.
Social Media Influencer Faces Trademark Infringement Suit
Key Takeaway: Companies and social media influencers should conduct reasonable due diligence and consider the potential for trademark infringement lawsuits before they post promotional content. Both parties should also consider what contractual protections and provisions make sense for each influencer relationship.
Continue Reading Social Media Influencer Faces Trademark Infringement Suit
CARU Updates Children’s Advertising Guidelines
Key Takeaways:
- The Children’s Advertising Review Unit has released new guidelines for children’s advertising, moving beyond traditional TV advertising, to address a broader range of digital advertising issues.
- The updated Guidelines go into effect on January 1, 2022 and apply to advertising that is primarily directed to children under age 13 in any medium or content.
Continue Reading CARU Updates Children’s Advertising Guidelines
National Advertising Division Weighs in on Advertising Claims Related to Lab-Grown Diamonds
Key Takeaways:
- The FTC’s Jewelry Guides require marketers to make clear and conspicuous disclosures to truthfully represent the origin of lab-grown diamonds and gemstones (i.e., distinguishing mined diamonds and gemstones from man-made substitutes) and otherwise comply with the Jewelry Guides (see below for additional compliance considerations).
- Advertising claims for lab-grown diamonds and gemstones are subject to scrutiny by regulators, competitors (including adverse trade associations), and consumers, so companies should consult with legal counsel when developing any such claims.
Loyalty and Rewards Programs
Jason Howell and Amanda Beane team up with Miriam Farhi, co-chair of Perkins Coie’s Privacy & Security practice, to discuss common legal issues and pitfalls associated with loyalty and rewards programs, including in the areas of marketing, privacy, and litigation. Listen here.