Photo of Wonji Kerper

Wonji Kerper advises companies on mitigating intellectual property risks with an emphasis on matters involving trademark, copyright, internet, and advertising.

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

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 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

The FTC published the proposed Negative Option Rule (Rule) to the Federal Register on April 24, 2023, with the goal of preventing unfair and deceptive practices related to recurring subscriptions for products and services. The FTC has invited the public to comment on proposed changes to the Rule. Written comments must be submitted by June

Key Update:

  • The National Advertising Division (NAD) updated its Fast-Track SWIFT process (Single Well-defined Issue Fast Track) to accommodate “implied” claims as long as they are clear cut and involve a single issue.
  • In 2020, the NAD launched its Fast-Track SWIFT resolution process, promising to resolve single-issue cases within 20 business days (as opposed to approximately three months in a standard NAD case). For an overview of the process, see our blog.

Previously, the SWIFT track was only used for express claims, and NAD frequently rejected SWIFT treatment for challenges to implied claims. The process, however, is now expanded to include “misleading express and implied claims.” NAD hopes that by making the change it will reduce the number of disputes over SWIFT jurisdiction that revolve around whether the contested claim is express or implied.Continue Reading National Advertising Division Expands Fast-Track SWIFT Process for 2023

The Federal Trade Commission (FTC) recently announced a notice of proposed rulemaking to expand its “Negative Option Rule” to apply to all recurring subscription programs (Proposed Amendment). The Proposed Amendment would have a sweeping effect on recurring subscriptions, requiring—similarly to some state laws—clear and conspicuous disclosure of material terms, double opt-ins for sign-ups, a simple cancellation method, and an annual renewal reminder. If approved, the Proposed Amendment would set a nationwide floor by requiring specific practices for subscriptions, but it would not supplant existing state laws addressing recurring subscriptions. The amendment would also greatly expand the FTC’s ability to seek penalties and consumer redress for violations.Continue Reading FTC Proposes Rulemaking for Recurring Subscription Programs