Ring in the new year by avoiding marketing practices that could result in class actions, regulatory enforcement actions, and competitor claims. Here are five advertising and marketing law takeaways for brands and legal teams to consider for 2021.
- Shoppers continue to challenge mandatory mask policies under the Americans with Disabilities Act (ADA).
- In one of the first decisions on the merits of these challenges, a court in the Western District of Pennsylvania held that the plaintiff did not present sufficient evidence for his claim that he should not have to wear a mask, and that, regardless, his request to shop without a mask was not reasonable when he also did not show that he could not wear a face shield or use alternative methods of shopping. The court declined to evaluate the store’s defense that its face covering policy is a legitimate safety requirement during the COVID-19 pandemic and that the plaintiff posed a direct threat to the health and safety of others.
- The court’s decision in this case may prove to be a boon for retailers, as it demonstrates that plaintiffs seeking to challenge mandatory mask policies on ADA grounds may face hurdles where they lack documentation to substantiate disability claims or where they are given reasonable alternatives to the in-store shopping experience.
Jason Howell and Amanda Beane discuss the basics of “was/now” pricing, discounts off of list and MSRP prices, and free offers. Listen here.
- Marketers should continue to ensure that all health claims are supported by competent and reliable scientific evidence. While the scientific community’s understanding of COVID-19 is still relatively new, marketers should be particularly careful making any express or implied advertising claims related to COVID-19.
- NAD continues to monitor and challenge misleading health claims related to COVID-19. NAD will refer these claims to the FTC and FDA as needed.
The Second Circuit recently affirmed a district court decision denying enforcement of an arbitration clause because it found that Subway’s website was “cluttered” and that the terms and conditions were not clear and conspicuous. The decision emphasizes that terms and conditions must be easily located. Continue Reading Court Holds That Subway’s “Cluttered” Website Inhibits Ability to Compel Arbitration
On June 25, 2020, the Federal Trade Commission (FTC) announced a $22 million settlement with the marketers of a low-level light therapy device called Willow Curve to enjoin them from making unsubstantiated and deceptive claims about the device’s ability to treat chronic, severe pain and associated inflammation. The settlement comes amid ongoing attention from the FTC and state attorneys general regarding false and deceptive advertising relating to pain products (such advertising is largely reactive to the opioid crisis). It also represents another enforcement action involving “native advertising,” in which paid advertisements are formatted to appear as independent content—a practice that the FTC finds deceptive without clear disclosure. Continue Reading FTC Enters Into $22 Million Settlement With Manufacturer of Willow Curve Regarding Unsubstantiated Pain Relief Claims and Deceptive Native Advertising
Jason Howell and Amanda Beane discuss green advertising, marketing, and sustainability issues, and how to navigate related pitfalls. Listen here.
While regulator actions related to the COVID-19 pandemic have understandably received the bulk of consumer protection headlines in recent months, influencer marketing remains a hot topic for the Federal Trade Commission (FTC) and National Advertising Division (NAD). As we continue into the latter half of 2020, we recap key enforcement actions, press releases, guidance, and letters related to endorsements and influencer marketing that brands may have missed during the pandemic. Continue Reading Check in on Influencer Marketing
On July 9, 2020, the U.S. Supreme Court granted certiorari in two cases to review whether the FTC has authority to seek restitution under Section 13(b) of the FTC Act. Section 13(b) provides that the FTC “may seek, and after proper proof, the court may issue, a permanent injunction.” For decades, courts have interpreted this language to authorize the full panoply of equitable remedies, including restitution and disgorgement of ill-gotten gains. Continue Reading Supreme Court to Review FTC Authority to Obtain Restitution
The co-chairs of Perkins Coie’s Advertising, Marketing & Promotions (AMP) group are excited to launch their podcast titled The AMP Moment. Meant to be easily digestible for busy in-house marketing and litigation counsel, the podcast focuses on where advertising, marketing, and promotions law meets practicing in the moment. On the first episode, COVID-19 and Advertising and Marketing Law, Jason Howell and Amanda Beane discuss practicing law in the current climate and share hot marketing and litigation topics during COVID-19, including health claims and cause marketing. Listen to their first episode here.