The Big Game Turns 50

We had several reactions to the game on Sunday.  What were yours?  As two people both of whom are looking at their thirties in the rear view mirror, it was hard not to root for the old guy, as much as we also love Cam Newton.  And as advertising lawyers it sometimes seems like we are more excited about the ads than the game itself.  This year was no exception.  There were dogs galore, a clear Made in USA claim, some tough comparative wireless claims and perhaps lots of tongue-tied, red-faced parents trying to explain to their little ones what a “super bowl baby” is.  Avocados spent big again on the big game and even the drug companies got into the act; although our enjoyment of spicy wings and French onion dip diminished a bit when there was talk of opiod induced constipation.

And our FTC ears perked up when we heard Peyton Manning not once but twice reference the fact that he was going to drink a lot of Budweisers.  Was this some sort of paid endorsement?  But then Anheuser Busch came out and said they hadn’t paid Peyton Manning a dime.  Though that then led some to wonder was he trying to snag some type of endorsement deal or perhaps a post-retirement gig as a beer distributor?  Ordinarily if a consumer endorses a product even if they are hoping to be selected for some campaign there is no material connection so long as no inducement was promised ahead of time (no sign on the door saying “casting for possible commercial today.”)  Is that different if it’s a celebrity that tries to foist their endorsement on you and does it matter maybe how big and irresistible that celebrity is?  But these are probably thoughts far too deep for a Super Bowl Blog so let’s get back to the commercials.  We’d love to hear what you thought and have picked out five widely acclaimed ads from Sunday night.  You can use the survey tool below (or click here) to rank them in order from your most to least favorite and we’ll announce the results soon.


When It Comes to the Year’s Biggest Sporting Events, Don’t Fumble Your Ad Campaign

Levi's Stadium image by Jim G

Photo by Jim G [CC BY 2.0] via Flickr

Will the Patriots’ dreams of heading to this year’s Super Bowl® get deflated? What, exactly, will Olympic® gold medalist Ryan Lochte do in Rio? How much madness will March cause? This year will be a big one for sports fans and advertisers alike, with Super Bowl 50 and March Madness® around the corner, followed this summer by the Olympic Games® in Rio de Janeiro, Brazil. With millions of viewers tuning in, these events are the top of the podium when it comes to advertising opportunities. The National Football League (NFL), National Collegiate Athletic Association (NCAA), and International Olympic Committee (IOC) all recognize this, and each organization actively enforces its trademark rights, policing infringing uses of its trademarks and any attempt by marketers to imply false affiliation with these events.  Marketers considering running an advertising campaign or promotion that uses any of the trademarks associated with these events without first obtaining the proper permissions should proceed with extreme caution.

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What You Can Learn From the FTC’s Case Against a For Profit University

On January 27, 2016, the FTC and the Department of Education both announced enforcement actions against DeVry University for making false and/or unsubstantiated claims regarding the job and earning results of its graduates.  The case highlights the increased scrutiny being placed on for profit education institutions and also provides insight into how the FTC examines objective advertising claims.

In a complaint filed in federal court in Los Angeles, the FTC challenged DeVry’s claims that: (i)  90% of its students landed a job in their field of study landed a job in that field within 6 months of graduation; and (ii) DeVry graduates on average earn 15% more than graduates from other colleges and universities.  The FTC alleged that DeVry’s representations were false or not substantiated at the time that the representations were made.  The FTC alleged that both the 90% and 15% figures were inflated.  The Education Department issued a Notice of Intent making allegations regarding the company’s career and placement statistics.

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Court Rules Settlement Offers Can’t Kill Class Actions

In a hotly anticipated decision, the Supreme Court yesterday refrained from permitting defendants to end class action cases by offering to make named plaintiffs whole by paying their damages before plaintiffs move for class certification.

In Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), Jose Gomez alleged that Campbell-Ewald violated the Telephone Consumer Protection Act (TCPA) by sending him unsolicited advertisements by text message.  Campbell-Ewald was contracted by the United States Navy to orchestrate a recruiting campaign, which included text message marketing to potential recruits who had “opted in” to receiving marketing solicitations.  Gomez, who had not “opted in,” received at least one such text message.  Relying on the statutory damages available under the TCPA, Gomez pursued damages and injunctive relief on his own behalf and as part of a class action.

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Pause, Clicking, and Dead Air – TCPA Autodialers as a Story about Nothing

In Telephone Consumer Protection Act (“TCPA”) autodialer cases, it is important for defendants to put plaintiffs to their evidentiary burden of proving that an autodialer actually was used.  As one recent case discussed below demonstrates, being active on this front and keeping records showing how a company lawfully engages in telemarketing can save time and money in potential litigation. We have blogged previously about TCPA autodialers cases (here, here, and here).

At the end of December 2015, in Norman v. Allianceone Receivables Mgmt., Inc., No. 15-1780 (7th Cir.), the Court of Appeals for the Seventh Circuit upheld a lower court’s award of summary judgment in favor of the defendant company in a TCPA autodialer lawsuit. The plaintiff alleged that the defendant company used an autodialer to place an uninvited telemarketing call to his home; the defendant company insisted, however, that no autodialers were used.  Continue Reading

Consumer Financial Protection Tune-up: Prepare for 2016

Advertising or offering a consumer financial product or service, or are you taking payments, furnishing data to consumer reporting agencies, or collecting debts? Then you’re likely asking, “What’s next on the legal horizon?” With 2016 now upon us, advertisers and marketers are taking a look back and a look forward to plan for the year. Advertisers of consumer financial services are no exception to that, and we’ve got you covered when it comes time to assessing the legal and regulatory landscape, with our firm’s upcoming webinar, Consumer Financial Protection Bureau Outlook 2016, which will be broadcast live on Tuesday, January 12 at 2:00 pm ET. CLE credit will be available for certain jurisdictions. Just click here and follow the onscreen prompts.  Continue Reading

FTC Settlement Sheds Light on Claims of Increased Cognition

It doesn’t take a genius to know that health claims are on the FTC’s radar.  In fact, at last year’s NAD conference, Commissioner Brill said that the FTC will prioritize enforcement of unsubstantiated health claims, such as cognitive claims.  We have blogged about learning claims before, including the Word Smart case.  However, Lumosity, which created a program marketed to train the brain, improve memory, and delay cognitive impairment, was cast into the spotlight this week when it settled a case with the FTC.

According to the FTC’s complaint, Lumosity, which contains 40 games ostensibly designed to improve brain function, advertised that training on its program for 10 to 15 minutes three or four times a week could help users achieve their “full potential in every aspect of life.”  The FTC alleged that Lumosity claimed that scientific studies showed that users would improve performance on everyday tasks, in school, at work, and in athletics; delay age-related cognitive decline and protect against dementia and Alzheimer’s disease; and reduce cognitive impairment associated with health conditions, including stroke, traumatic brain injury, PTSD, ADHD, the side effects of chemotherapy, and Turner syndrome.  Continue Reading

No Cop Out in COPPA: The FTC’s First Enforcement Actions on Persistent Identifiers

Last week, in settlements with two app developers, the Federal Trade Commission (“FTC”) announced its first enforcement actions under the Children’s Online Privacy Protection Rule (“COPPA Rule”) amendments on persistent identifiers.  Persistent identifiers are data that can be used to recognize a user over time and across different websites or online services.  In 2012, we blogged about the FTC’s update to the COPPA Rule, which added persistent identifiers to the definition of “personal information.”  Although some exceptions apply, the FTC made clear that persistent identifiers cannot be used for targeted (behavioral) advertising on child-directed sites or services, absent parental notice and consent.   Continue Reading

The FTC Awakens: Native Advertising Enforcement Statement Out Just in Time for the Holidays

Photo by Roland Tanglao [CC BY 2.0] via Flikr

Photo by Roland Tanglao [CC BY 2.0] via Flikr

It’s been a big week for premieres. And if you thought you sensed a disturbance in the Force then the Force is indeed strong with you as the FTC just released their Enforcement Policy Statement on Deceptively Formatted Advertisements and Business Guidance on Native Advertising.

A long time ago, in a conference room far, far away, the FTC held a workshop on Native Advertising with a promise that some form of industry guidance would follow.  As it turns out, the premieres in both cases were worth waiting for.  Bearing in mind the Master’s admonition — “Do.  Or do not.  There is no try,” our take on the Enforcement Statement and Business Guidance is below.  And like many a typical blockbuster movie there was just too much good stuff to leave behind on the cutting room floor so our apologies ahead of time for the length of this blog.

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NAD Ups the Ante on “Up To” Claims

A couple of years ago it felt like we were blogging about developments in cases involving “up to” claims up to 3x more often than just about any other topic.  To summarize the upheaval, for many years there were cases allowing an up to claim if an “appreciable number” of consumers could enjoy the claimed maximum benefits.  There are also state and local pricing laws requiring for sales claims that 10-15% of the sale goods be available at the highest advertised discount.  Then the FTC brought cases involving savings claims for installing new windows, which included some rather sobering consumer research in which consumers appeared not to understand even relatively clear disclosures regarding “up to” claims.  The cases settled with orders requiring that all or almost all of consumers be likely to achieve the maximum claimed savings.  As a result the advertising legal community was thrown into a frenzy not knowing if the upper limit in an up to claim had to be something everyone could attain or 10% could attain or something in between.  NAD largely stuck to its old standard, but in cases where the purchase required a significant investment seemed more aligned with the FTC’s view in the windows cases. But things seemed to settle down somewhat back to normal when the FTC did not follow with a flurry of new cases.  Continue Reading