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

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

Key Takeaways:

  • Brands should honor advertised product benefits and avoid techniques to block product use.
  • Under the Restore Online Shoppers’ Confidence Act (and state auto-renewal laws), advertisers must disclose material terms and conditions and obtain consumers’ express consent before charging a payment card or account.

The FTC and MoviePass recently settled related to allegations that the company used deceptive tactics to prevent subscribers from using its service and insecurely held subscribers’ private information. The FTC’s complaint alleged that MoviePass used three tactics, described below, in a perceived attempt to save money on their $9.95 per month subscription service that was advertised as providing unlimited access to certain films in theaters.

Limiting Subscribers’ Usage: The FTC alleged that MoviePass, its parent company Helios and Matheson Analytics, Inc. (Helios), and its principals Mitchell Lowe and Theodore Farnsworth, scrambled at the high demand for the subscription service and took steps to prevent users from receiving the advertised “one movie per day” that they had paid for in order to cut costs. The FTC listed the following deceptive or unfair tactics that MoviePass operators allegedly engaged in to set up roadblocks for consumers: Continue Reading MoviePass Settles with the FTC Regarding Limitations on Subscribers’ Usage

Key Takeaways:

  • The Federal Trade Commission (FTC) is actively using the COVID-19 Consumer Protection Act to protect consumers, with a new case alleging the defendant failed to timely deliver masks and failed to process refunds or cancellation requests. The complaint also alleges the defendant promised N95 masks but delivered cloth masks instead.
  • The FTC’s Mail Order Rule requires a seller to notify customers when a delay is discovered, make adjustments to website content to give appropriate notice, and offer the right to cancel with an adequate refund.

Continue Reading FTC Brings Action Alleging False PPE Delivery Claims

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.

Continue Reading National Advertising Division Weighs in on Advertising Claims Related to Lab-Grown Diamonds

Key takeaways:

  • A recent report from the House of Representatives has motivated nearly 100 false advertising cases against baby food manufacturers.
  • The cases allege that the companies sold food containing heavy metals and failed to disclose that fact.
  • The filings have prompted Food and Drug Administration and Congressional action on heavy metals in baby food and may invite additional scrutiny from regulators and plaintiffs’ counsel on trace substances in consumer product goods, beyond baby food.

Continue Reading Nearly 100 Cases Claim That Baby Food is Tainted With “Dangerous Levels” of Heavy Metals; Here’s What You Need to Know

On April 22, 2021, in a unanimous decision, the U.S. Supreme Court in AMG Capital Management v. FTC held that the authorization to seek a “permanent injunction” under Section 13(b) of the Federal Trade Commission Act does not permit the FTC to obtain equitable monetary relief such as restitution and disgorgement. While the FTC may still seek monetary relief under Sections 5 and 19 of the Act, those provisions can be more difficult for the FTC to pursue. FTC Acting Chairwoman Rebecca Kelly Slaughter is already calling on Congress to “strengthen the FTC’s powers” in light of the decision. Click here to read the full Perkins Coie Update.