President Biden has appointed Commissioner Jessica Rosenworcel as acting chairwoman of the U.S. Federal Communications Commission. In this role, she is expected to pursue the priorities of the new administration and begin to roll back many of the policies and rules adopted by the FCC during the Trump administration. In this client update, we examined Acting Chairwoman Rosenworcel’s published dissents and concurrences that she previously issued to provide an overview of her likely priorities for the FCC under the new administration.
On January 8, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced proposed regulations that would significantly affect how businesses selling to California consumers may use short-form Proposition 65 warnings on their products. These proposed regulations, if finalized, may create new compliance obligations and will likely decrease the use of the short-form Proposition 65 labeling in the marketplace.
- The FTC’s Enforcement Policy on S. Origin Claims and related compliance guide apply to advertising of “Made in USA” or similar U.S. origin claims, including manufacturer advertisements of private label products to trade customers who will later market and sell such products under retail brand names.
- The $1.2 million settlement is the largest obtained by the FTC in a Made in USA case and reinforces prior signals that the agency will continue to seek monetary penalties when enforcing against allegedly deceptive Made in USA
- Marketers should strive to advertise the specific environmental product benefits that are well-supported in order to avoid communicating an overbroad “general environmental benefit” claim that cannot be supported, consistent with the FTC’s Green Guides.
- Environmental claims and comparative advertising claims are subject to scrutiny by regulators, competitors, and consumers, so consult with legal counsel when developing such claims.
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