Venable’s Advertising and Marketing Group hosted its 10th Advertising Law Symposium on March 21 in Washington, DC. The group welcomed in-house counsel, advertising executives, and marketing professionals for a full day of sessions on the latest developments in advertising law and what to watch for soon.

Here are some highlights:

Patchwork of Privacy Laws Makes Compliance a Challenge

Frequent data breaches and incidents like the 2018 Cambridge Analytica scandal have increased criticism of the United States’ approach to regulating privacy through a patchwork of federal and state laws and industry self-regulatory codes. But even harsh critiques have not been enough to spur Congress to pass a preemptive privacy law that would supersede the jumble of state laws and regulations and streamline things. Partner Rob Hartwell and associate Allie Monticollo said marketers and advertisers should watch what’s happening in the states and mitigate risk accordingly.

Continue Reading Event in Review: 10th Advertising Law Symposium

Episode 9 of the Ad Law Tool Kit Show, “Copyright Counseling and Protection,” is now available. Listen here, or search for it in your favorite podcast player.

Maintaining a robust copyright portfolio is crucial for brand owners. Copyright is a universe almost as big as Marvel’s, covering materials from ad copy to music and social media posts.

In this episode, I talk to Venable partner Justin Pierce about how it’s vital to secure ownership rights through agreements, clear third-party content, register copyrights, and have work-for-hire contracts. Staying updated on copyright trends and checking insurance coverage are essential for comprehensive copyright protection.

Continue Reading Listen to Episode 9 of Venable’s Ad Law Tool Kit Show—”Copyright Counseling and Protection”

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the author of this chapter dive deeper into the issue of social media, influencers, and endorsements in this week’s episode.


Advertisers increasingly view social media as an opportunity to have influencers speak positively about their products and services. The Federal Trade Commission (FTC) has made it clear, however, that the rules regarding disclosure of material connections also apply in the social media context. Indeed, the FTC recently updated its Guides Concerning the Use of Endorsements and Testimonials in Advertising to clarify them and address questions triggered by new technologies (such as computer-generated influencers) and platforms. Over the years, the Commission has pursued numerous cases against influencers, agencies, and the companies that hire them.

Continue Reading Social Media, Influencers, and Endorsements: An Excerpt from the Advertising Law Tool Kit

In late January, the Federal Trade Commission (FTC) and Justice Department (DOJ) announced a collaborative effort to update their instructions regarding preservation of electronic communications to targets of pre-litigation information requests in antitrust investigations. The agencies’ new instruction makes clear that targets must preserve ephemeral messages and threatens civil or criminal sanctions for failure to do so.

A number of popular messaging platforms—both text and email—allow users to send messages that are erased and permanently disappear either immediately or shortly after the recipient reads the message. SnapChat and Slack are common examples of apps that give users the option of ephemeral messaging. Some of these apps use end-to-end encryption to prevent third-party providers from accessing the communications. For example, Signal and Proton Mail are prevalent messaging and email platforms used for their ephemeral messaging capabilities.

Continue Reading The FTC’s and DOJ’s New Magic Act: Vanished Messages Will Reappear in Discovery

Episode 8 of the Ad Law Tool Kit Show, “Social Media, Influencers, and Endorsements,” is now available. Listen here, or search for it in your favorite podcast player.

Advertisers increasingly view social media as an opportunity to have influencers speak positively about their products and services. But the Federal Trade Commission (FTC) has made it clear that rules regarding disclosure of material connections also apply in the social media context.

In this episode, Venable partner Melissa Steinman and I go over guidelines that include straightforward declarations like “X Company gave me a free product” or hashtags like #ad, emphasizing upfront, noticeable disclosures. Specific rules apply for different content formats, urging companies to monitor and educate employees and third-party implementers to prevent regulatory issues.

Continue Reading Listen to Episode 8 of Venable’s Ad Law Tool Kit Show—”Social Media, Influencers, and Endorsements”

Earlier this month, the National Advertising Division of BBB National Programs (NAD) recommended that Amyris Clean Beauty, Inc.’s (Amyris) Biossance skincare products modify or discontinue several claims regarding their “clean” and “ethically and sustainably sourced” ingredients, including:

  • “Clean ingredients and clean formulas—we ban over 2000 ingredients that are known to be toxic to you and the environment. All of our ingredients are also ethically and sustainably sourced.”
  • “Our 100% sugarcane derived squalane is ethically and sustainably sourced, keeping 2 million sharks every year safe from liver harvesting.”
  • “Did you know our squalane is sugarcane derived and it’s a hero ingredient in *every* Biossance formula? This miracle multitasker locks in weightless moisture, calms and protects, and improves elasticity.”
Continue Reading NAD Issues Decision Addressing “Clean,” “Ethically and Sustainably Sourced,” and Efficacy Claims for Amyris Clean Beauty, Inc. Biossance Skincare Products

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of payment processing in this week’s episode.


Establishing a solid merchant processing relationship for the acceptance of card and other forms of payment for your sales is a key back-end function that no retailer should neglect. In addition to processing payments through the credit and debit card and automated clearing house (ACH) networks, payment processors can provide helpful analytical tools, dispute resolution, data security assistance, and other products or services related to payment processing.

Merchant processing can be complex, however, as the payments ecosystem has multiple layers of stakeholders, including card-issuing banks, the card and ACH networks, merchant-acquiring banks, processors, independent sales organizations, payment facilitators, third-party senders, and software providers.

The emergence of value-added resellers and independent software vendors, which often offer payment processing services as part of their platforms, may also bring new processing options to the table. Complicating matters further, consumers demand more payment options than ever, including new developments, such as Buy Now Pay Later (BNPL), digital wallet integration, and even cryptocurrency.

We help our merchant clients navigate the roles and responsibilities of each party in the payments chain, so that they can effectively understand and negotiate the complexities of accepting a broad range of payment methods. We provide assistance with the spectrum of related issues, from the merchant application through the terms of the payment processing agreement, fee schedules, bank requirements, and compliance with network rules.

We also assist merchants in understanding the regulatory and law enforcement risks that go with payment processing, including how the regulators view processing metrics, the opening of multiple merchant accounts, chargeback or fraud-monitoring programs, consumer protection issues in accepting payments, and other potential processing pitfalls.

Consider these best practices to minimize legal, regulatory, and business problems related to payment processing:

  • Accept cards and other forms of payment consistent with your merchant processing agreements, network rules, and applicable laws and regulations.
  • Handle payments, refunds, returns, and exchanges properly, and in a timely manner.
  • Comply with payment card industry data security and storage requirements.
  • Use encryption and tokenization to secure payments.
  • Take proactive steps to minimize fraud and cardholder disputes (chargebacks).
  • Continually strengthen your understanding of the payments industry and your responsibilities in accepting payments.

To learn more about payment processing, contact Ellen Berge or Andrew Bigart. For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.

The Rule-A-Palooza continues at the FTC. On March 7, 2024, the Federal Trade Commission (FTC) released a Final Rule that updates the recordkeeping requirements under the Telemarketing Sales Rule (TSR). The Final Rule requires telemarketers and sellers to maintain additional records relating to their telemarketing transactions. The FTC also extended the period for which all records must be kept—now five years instead of two. The Final Rule also extended the prohibition of material misrepresentations and false or misleading statements in business-to-business (B2B) calls.

New Recordkeeping Requirements

According to the FTC, the newly added recordkeeping requirements are meant to help the FTC identify the telemarketer and seller and to link the content of the telemarketing calls with the call detail records to determine TSR violations. The new requirements are as follows:

Continue Reading FTC Piles on Additional Recordkeeping Requirements and Business-to-Business Protections

The National Advertising Division of BBB National Programs (NAD) recommended last month that Stihl Incorporated USA (Stihl), a manufacturer of equipment and tools, discontinue or modify its unqualified “Made in America” claims. Modified claims would need to make clear that “not all (or virtually all) of its products are made in the United States and that not all (or virtually all) of the parts of those products are from the United States,” according to the recommendations.

The Claims at Issue

NAD reviewed “Made in America” claims made on Stihl’s website, social media, commercials, and print ads. In addition to claiming “Made in America,” Stihl ran ads stating, “It’s just three words. But they tell you everything you need to know…Not everyone can say them. But we can. MADE IN AMERICA.”

Continue Reading In “Made in America” Case NAD Finds That Advertisers Should Not Rely on Disclosures to Cure a False or Misleading Claim

Episode 7 of the Ad Law Tool Kit Show, “Payment Processing,” is now available. Listen here, or search for it in your favorite podcast player.

For retailers, a key, back-end function you can’t do without is a solid merchant processing relationship to acceptance of payments. Robust merchant processing includes credit/debit card, ACH networks, and auxiliary services like analytics, dispute resolution, and security tools.

In this episode, I talk to Venable partners Ellen Berge and Andrew Bigart, who discuss the importance for merchants to understand the intricacies of compliance, risk management, security, and fraud prevention.

Continue Reading Listen to Episode 7 of Venable’s Ad Law Tool Kit Show – “Payment Processing”