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Tim Carter represents, counsels, and defends clients in intellectual property (IP), media, advertising, unfair competition, and consumer protection matters.

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?

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 updates:

  • Under its Penalty Offense Authority, the Federal Trade Commission (FTC) warned almost 700 marketers with a Notice of Penalty Offenses (Notice) that certain advertising claims must be proven or substantiated with reliable evidence, especially those related to health products, or they may face civil penalties.
  • Advertisers should have a reasonable basis for health claims, including complying with recognized scientific standards when making claims about the effectiveness of their products in curing, mitigating, or treating significant conditions such as cancer or heart disease.
  • The Notice comes on the heels of the FTC updates to Health Products Compliance Guidance (the Health Guides) and indicates the FTC continues to scrutinize health claims.

Continue Reading Another Round of Notice of Penalty Offenses—The FTC Targets Health Claims

As part of its assessment of the Guidelines for the Use of Environmental Marketing Claims (Green Guides), the Federal Trade Commission (FTC) will hold a workshop on May 23, 2023, to consider “recyclable” advertising claims and issues related to environmental claims. The workshop is titled “Talking Trash at the FTC: Recyclable Claims and the Green Guides.”Continue Reading FTC To Hold Workshop on “Recyclable” Claims as Part of Continuing Green Guides Review

The Federal Trade Commission (FTC) recently issued Health Products Compliance Guidance (the Health Guides). The Health Guides replace prior FTC guidance issued in 1998 that largely focused on dietary supplements. The new guidance addresses advertising practices for a broader range of products, namely “any health-related product,” including foods, over-the-counter drugs, homeopathic products, devices, health equipment

Key Takeaways:

  • On September 15, 2022, California Governor Gavin Newsom signed into law the bipartisan California Age-Appropriate Design Code Act (CAADCA or the Act), Cal Civ. Code 1798.99.28 et seq., which goes into effect on July 1, 2024.
  • The Act places new obligations on companies with online products, services, or features that are “likely to be accessed by children” under the age of 18.
  • The Act is notable for its strict obligations applying to a broad spectrum of businesses, including those whose digital products and services are used by a significant number of minors, even if the business does not directly target children. It is also notable for applying to all minors under 18, rather than distinguishing between those under 13 and those aged 13-18.
  • A recent lawsuit brought by a technology trade group claims the Act violates free speech and is preempted by the Children’s Online Privacy Protection Act (COPPA), which sets website operator requirements for online interactions with children 13 and under, and the Communications Decency Act (CDA).
  • At least five other states are considering children’s privacy-related legislation.

Continue Reading Building Blocks – Lawmakers Are Increasingly Focused on Children’s Privacy

Another new year begun, so it’s time for retailers to revisit advertising and marketing law compliance strategies to avoid class actions, regulatory enforcement actions, and competitor challenges. We share our picks for the top five U.S. marketing law topics that deserve your attention in 2023.

The Federal Trade Commission (FTC) announced that it is seeking public comment on the Green Guides for the Use of Environmental Claims (Green Guides) as it considers potential updates. Last updated in 2012, the Green Guides serve as the FTC’s guidance for environmental marketing claims. The FTC is seeking public feedback on various green advertising topics, including whether to make the Green Guides independently enforceable and their interaction with other environmental marketing laws. The FTC is interested in hearing what industry stakeholders and consumers think about environmental claims generally, including those that are not currently covered by the guidelines.Continue Reading FTC Invites Comments for Green Guides Review

Key Updates

  • The Federal Trade Commission (FTC) settled with internet phone service provider Vonage for allegedly using dark patterns to make it difficult for customers to cancel their phone service, charging unnecessary fees, and continuing to charge customers who had canceled their service. Dark patterns are design practices – often for a website or software app – that harm consumers, typically by manipulating or tricking them into making choices that they might not otherwise have made.
  • Under the settlement terms, Vonage is required to obtain express consent before charges, simplify its cancellation procedure, and pay $100 million in refunds.

Continue Reading Vonage To Pay $100 Million To Settle FTC Action Regarding Dark Patterns and Junk Fees

Key Takeaways:

  • These two cases are the latest in an ongoing push by the FTC to curb false and deceptive “Made in USA” or COVID-19-related representations by individuals capitalizing on a pandemic-fueled demand for American-made products.

Continue Reading Sticker Shock: FTC Enforces “Made in USA” Labeling Rule