In November and December 2021, the U.S. Department of Justice entered into settlement agreements with two private companies and one public entity addressing website accessibility, signaling increased enforcement activity in this area. This update provides more information about the settlement agreements and DOJ’s approach to website accessibility.
Eleventh Circuit Vacates Ruling That Websites Are Not Public Accommodations Under the ADA
Key Takeaways:
- The U.S. Court of Appeals for the Eleventh Circuit recently vacated its April 2021 opinion holding that websites do not constitute places of public accommodations under Title III of the Americans with Disabilities Act (ADA).
- Prior to this decision, the Eleventh Circuit was the only federal circuit court of appeal to explicitly hold that Title III of the ADA does not apply to websites, although federal courts are split as to whether Title III extends only to websites with a “nexus” to a physical location or to stand-alone e-commerce sites.
- In 2021, as in other recent years, thousands of website accessibility cases were filed and an untold number of demand letters were received by businesses. Businesses should consider digital accessibility and ways to reduce risk of claims.
Updated CARU Children’s Advertising Guidelines Take Effect
The new Self-Regulatory Guidelines for Children’s Advertising (the Guidelines) issued by the Children’s Advertising Review Unit (CARU) went into effect on January 1, 2022. The Guidelines apply to advertising that is primarily directed at children under the age of 13 in any medium. CARU will monitor child-directed advertising and media for compliance with the Guidelines to ensure that advertising directed at children is not deceptive, unfair, or inappropriate for children.
For additional information about the Guidelines, see our blog post here.
New State Automatic Renewal Laws Take Effect
New or updated auto-renewal laws have taken effect in Colorado, Delaware, and Illinois. Key takeaways for brands offering recurring subscription programs follow: Continue Reading New State Automatic Renewal Laws Take Effect
Ad Law Resolutions for 2022
‘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.
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.
Listen to “Gender-based Pricing – Episode 8” on Spreaker.
Note that all episodes are available on Apple Podcast and Spotify.
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 National Advertising Division of BBB National Programs Laura Brett about using the NAD process to resolve advertising disputes between competitors as an alternative to litigation. Jason, Amanda, and Laura also discuss hot topics and trends in advertising challenges.
Listen to “Advertising Disputes—An Alternative to Litigation – Episode 7” on Spreaker.
Note that all episodes are available on Apple Podcast and Spotify.
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.