The ESRB, and it’s European equivalent PEGI, have issued new labeling requirements for video games containing loot boxes or other types of in-game purchases with randomized elements. The new labeling designation of “In-Game Purchases (Includes Random Items)” includes, but is broader than, loot boxes. Failure to adhere to this requirement may result in fines. Read

The National Advertising Division recently revealed its plans to launch a fast-track resolution process to resolve certain false advertising claims in a mere 2-4 weeks. This fast-track process will provide a useful tool for companies that want to quickly and efficiently challenge certain competitor advertising practices.
Continue Reading NAD Reveals Initial Plans for 2020 Fast-Track Process

In November, the FTC issued a new resource for online social media influencers, titled “Disclosures 101 for Social Media Influencers,” which provides compliance tips for influencers disclosing payment, free products, and other “material connections” in their social media posts.  This new guide is the latest development in an ongoing effort by the FTC to educate influencers on when disclosure obligations apply and how to make effective disclosures.  A few takeaways from the new guide
Continue Reading FTC Publishes “101” Disclosures Guidance for Social Media Influencers

Businesses must begin taking concrete steps to prepare for the next wave of environmental and consumer products safety litigation, which is likely to focus on any historic and/or current use of materials containing certain per- and polyfluoroalkyl substances (PFAS). An umbrella term covering more than 5,000 man-made chemical compounds, PFAS has been widely used in

In late September 2019, California enacted a new law, AB 647, that would impose expanded disclosure requirements on certain cosmetic and disinfectant products. Effective in July 2020, manufacturers and importers of cosmetics and disinfectants that contain hazardous substances, as defined by California’s Department of Industrial Relations (“DIR”), would need to post a safety data sheet (“SDS”) on the entity’s website by the product’s brand or commonly known name. The required SDS must also be translated into Spanish, Vietnamese, Chinese, Korean, and other languages as required by DIR.
Continue Reading California Expands Disclosure Requirements Regarding Cosmetics and Hazardous Substances

The Federal Trade Commission (FTC) and self-regulatory bodies such as the Electronic Retailing Self-Regulation Program (ERSP) have their attention focused on social media influencers. In a recent decision involving Alo, LLC—the company behind Alo Yoga, a popular purveyor of yoga-related merchandise—ERSP reviewed approximately 60 private Instagram accounts containing endorsements for Alo Yoga’s products. ERSP’s message to advertisers is a familiar one: influencers and endorsers with a material connection to the advertiser must disclose such connection and brands must institute good training and monitoring processes to encourage such disclosures.

Continue Reading ERSP Reminds Brands to Disclose Connections with Ambassadors

On September 26, 2018, Christine S. Wilson was sworn in as a Commissioner at the Federal Trade Commission into the seat previously held by Maureen Ohlhausen.  Commissioner Wilson most recently held a senior legal role at Delta Airlines, previously was an antitrust partner at two large law firms, and during the George W. Bush Administration served as Chief of Staff to FTC Chairman Timothy Muris.

With the addition of Commissioner Wilson, the FTC now has a full slate of five commissioners at the helm, all of whom joined the agency within the last six months.  It is still early days at the FTC under the leadership of Chairman Joe Simons but there are already signs that change is afoot.  For example, the FTC has begun a broad review of whether it is using the full range of its remedial powers as effectively as possible, including whether there are new or infrequently applied remedies, such as monetary relief or notice to affected consumers in deceptive advertising cases. 
Continue Reading Christine S. Wilson Sworn in at FTC, Completing New Slate of FTC Commissioners

Consumers notice and are more likely to buy products that are marketed as Made in USA, but companies face significant legal risk, negative publicity, and decades of government oversight if they overstate the extent to which their products are made in the United States.

  • Companies marketing their products without qualification as Made in USA

Takeaways:

  1. Support any comparative claims and clearly disclose the basis of the comparison.
  2. Be specific about claims regarding products or components made in the United States.

Last month, the National Advertising Division (NAD), a self-regulatory body, recommended that Telebrands, Corp., discontinue certain advertising claims for the company’s Atomic Beam flashlight, including claims comparing its brightness

 

Takeaways:

  1. Health-related advertising claims must be supported by competent and reliable scientific evidence, generally consisting of human clinical trials that are methodologically sound and statistically significant to the 95% confidence level.
  2. Advertising claims must be clearly expressed as ingredient claims if the substantiation addresses only the efficacy of the ingredients in the product, not the product itself.


Continue Reading National Advertising Division Recommends that VH Nutrition Discontinue Claims for TriDrive Supplement Marketed to Athletes