Readers of this blog often learn how the government regulates modern instruments for customer engagement – social media, texting campaigns, e-commerce sites, the use of influencers, and more. Old habits die hard, however, and many marketers continue to use the U.S. Postal Service to connect with consumers. When those mailers want to reach a large audience, Marketing Mail (formerly known as Standard Mail) may be the answer. Mailers use USPS Marketing Mail to deliver catalogues, circulars, flyers, advertising, and both printed and non-printed merchandise designed to enhance the tactile experience of opening the mail and create a positive association with the sender.
Consumer surveys play an increasingly important role in advertising law, whether it’s a Lanham Act case, a regulatory or self-regulatory matter, or internal counseling. Yet consumer surveys can also be a trap for the unwary. On Thursday, September 20, join Venable’s Randy Shaheen, as well as Jacqueline Chorn and Jason Och, experts from Applied Marketing Science, for a webinar that will unpack some of the mysteries surrounding the design and implementation of consumer surveys.
Thursday, September 20, 2018
2:00 p.m. – 3:00 p.m. ET
The ink was barely dry on our Monday blog when a new skirmish broke out (both on Twitter and in official records) in the FTC’s long-brewing remedy wars. This time the battle took place in another unlikely location – three Made in USA settlements.
First to set the scene. The FTC generals announced that they had accepted surrenders from three combatants who were attempting to sell products allegedly mislabeled as Made in USA. In one instance there were hockey pucks, “Patriot Pucks” that were patriotic if you happened to be a citizen of China and that were marketed as “The Only American-Made Hockey Puck.” In another instance, mattresses that were wholly imported from China were labeled as “designed and assembled in the USA.” And finally, backpacks and wallets were sold on websites that claimed to feature “American-Made Products” and the wallets were specifically promoted as “American Made.”
Venable clients that engage in selling goods and/or services over the internet should evaluate whether the recent Supreme Court decision in South Dakota v. Wayfair will now require them to begin collecting sales and use taxes in states where they have not previously done so. In the Wayfair Case the Court held that a state can require a remote vendor to collect its sales/use tax based merely on “economic nexus” with the state. The prior law standard requiring a remote vendor to have physical presence in a state has been overturned. Under the South Dakota law at issue in Wayfair, an internet retailer is required to collect South Dakota sales tax if it has more than $100,000 of sales into the state or more than 200 sales transactions in the state over the course of a year.
Our chart below lists the states that currently have authorized an economic nexus standard similar to that approved in Wayfair and lists the threshold requirements for each state. This list can be expected to grow as states without economic nexus laws for sales tax purposes rush to alter their existing standards to take advantage of Wayfair’s liberalization of the sales tax nexus rules.
No one in law school ever mentioned that social media was required professional reading. (Well, let’s be honest. There wasn’t social media when we were in law school). However, perhaps inspired by our President, Twitter has become quite interesting lately when it comes to the FTC. One of the more interesting tweet storms started as a result of the FTC’s recent action modifying a consent agreement reached with Speedway. The Speedway modification is itself a fascinating tale. In brief, fifteen years ago, Speedway agreed to refund $1 million to consumers as a result of allegedly deceptive statements about a fuel additive. Speedway was supposed to redistribute funds from checks that ultimately went uncashed but failed to distribute about $80,000 of the million that went uncashed. Fifteen years later, Speedway self-reported the violation and proposed sending the money to the U.S. Treasury in lieu of sending an additional $1 or so to each of the initial recipients. This practice, as the majority notes, also conforms to more recent Commission practice which allows for the remittance of uncashed funds to the Treasury. Four Commissioners approved this modification, noting, among other things, the cost of forcing Speedway to comply with the order as written and that had Speedway not self-reported the violation, it would have never been detected. Commissioner Chopra dissented, noting that allowing Speedway to now simply send a check to the U.S. Treasury saved it the expense of finding and sending checks to individual consumers and that Speedway should not profit from its order non‑compliance. As a side note, Commissioner Chopra also called for clearer guidance when it comes to any benefits associated with self-reporting a suggestion which the majority called “worth consideration.” (Currently, as a matter of enforcement discretion, the Commission will sometimes close investigations when a company corrects a violation prior to the initiation of a Commission investigation, which is, in a manner of speaking, a variation of self-reporting).
“On August 30, 2018, businesses will be required to provide revised “clear and reasonable” warnings under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (known as Proposition 65 or Prop 65) if they would like to avail themselves of the safe harbor provided by the implementing regulations of the Office of Environmental Health Hazard Assessment (OEHHA or the Agency). Retailers and manufacturers/distributors alike should ensure that they are in compliance with the new rules, keeping in mind that there are specific requirements related to products sold via the Internet and product catalogs.
Under Prop 65 and the implementing regulations, businesses with 10 or more employees must provide “clear and reasonable” warnings to Californians before exposing them to a chemical listed by OEHHA as a carcinogen or reproductive toxicant (more than 900 chemicals are now on the list). The current regulations, adopted in 1988, established criteria for what OEHHA considered to be a “clear and reasonable” warning, including specific language that, if used, would be deemed compliant with the regulations (known as “safe harbor” warning language).
In 2016, OEHAA adopted new safe harbor warning regulations that become effective later this month. The new regulations place a significantly heavier burden on manufacturers/distributors to provide consumer product warnings. Specifically, manufacturers/distributors must provide revised warnings on the labels of their consumer products or provide notice and materials to retailers so that retailers can post the revised warning on signs or shelf tags at the point of purchase. Manufacturers/ distributors must update the notice to retailers periodically and obtain electronic or written confirmation from the retail seller that it received the notice.
In recognition of a rapidly changing ecommerce environment, Visa has created a new category of payment aggregator – a “marketplace” – for entities that bring “together Cardholders and retailers on an electronic commerce website or mobile application.” The new marketplace designation will have an immediate impact in the ecommerce market by clarifying the status and requirements applicable to ecommerce sites looking to add payment processing services to their platforms. While this model is likely to grow in popularity, it raises a number of regulatory and compliance issues that must be taken into account.
What Is a Marketplace?
A marketplace is a type of ecommerce site that facilitates the sale of products or services by multiple third-party retailers through an online platform. While the main function of a marketplace is facilitating sales by bringing buyers and retailers together, this activity necessarily requires that a payments system be included in the platform. Traditionally, many of the largest marketplaces have incorporated payments by partnering with more traditional payment processors to handle the nuts and bolts of acquiring, clearing, and settlement. The new marketplace category will provide these websites with additional flexibility to offer their own processing solutions.
The FTC has been waging a steady war against advertisers that use introductory offers that turn into subscription agreements. With the FTC threatening to seek full consumer redress and to impose joint and several liability, most companies and their principals cannot afford to litigate such cases and are forced to settle. In March 2015, the FTC sued DIRECTV, alleging that DIRECTV failed to properly disclose material terms of its introductory offer and its subscription agreements. DIRECTV chose to fight. Last August the case went to a bench trial. After the close of the FTC’s case, the judge suspended the trial so that DIRECTV could move for a judgment in its favor. Last week, the judge granted DIRECTV’s motion in part, tossing out large parts of the FTC’s case. The opinion provides insightful guidance on how to structure continuity offers and illustrates the difference between alleging something is deceptive and proving it.
In its complaint, the FTC alleged that DIRECTV failed adequately to disclose that: (1) introductory prices were limited to the first 12 months of 24-month subscriptions; (2) the subscriber is subject to a 24-month commitment; (3) early termination fees would apply if subscriptions were cancelled early; and (4) premium channels were free for three months and then would be automatically charged at the regular rate unless the subscriber called to cancel. The FTC alleged these deceptive statements were made in print, TV, and banner advertisements as well as the directv.com website. Based on these allegations, the FTC sought restitution of $3.95 billion based on DIRECTV’S alleged unjust gains from the deception.
“Slamming and cramming” might sound more appropriate in professional wrestling than telecommunications, but it’s the Federal Communications Commission and not the WWE that’s making moves in this area. On June 7, the Commission approved new rules aimed at stopping both slamming and cramming by telecommunications carriers, which we’ve summarized below. On August 16, these new rules will go into effect.
“Slamming” refers to a change being made in a consumer’s telephone service provider without the consumer’s permission. According to the new standard, slamming can happen whenever there is a “material misrepresentation,” which could be the result of false information in a sales call or the falsification of a consumer’s verification. The FCC is concerned that telephone companies use falsified confirmations to satisfy the third-party verification system, which is one of the approved mechanisms by which a company can establish the consumer’s switch. Some companies have done this by recording affirmative language from a consumer in one phone call and playing that same sound bite in the call establishing third-party verification, all without the consumer’s consent or knowledge. To further discourage that specific practice, companies that misuse the third-party verification system are now subject to a five-year suspension from its use. The new rule also codifies procedural hurdles leveled against companies accused of slamming. Once a consumer claims a misrepresentation occurred, then the burden is on the telephone company to prove its absence. And if a material misrepresentation on a call has been established, then even evidence of consumer authorization will not change this determination. “Cramming” is more straightforward – it’s when phone companies add charges to a bill for services that were never authorized by the consumer.
Slamming and cramming were not permitted practices before this action, but through this order the FCC is expressly prohibiting them. This rule bans material misrepresentations that cause a consumer to switch providers, i.e. slamming, and adding unauthorized charges to a consumer’s telephone bill, i.e. cramming. By explicitly banning these practices, the FCC hopes to provide greater clarity to these issues and deter non-compliant industry action. The FCC also continues to further that same goal through enforcement action. For example, in April the Commission proposed a $5,323,322 penalty on a phone company for slamming and cramming, as well as providing false evidence. Considering the upcoming implementation of the final rule as well as recent enforcement in this area, we recommend that you ensure your current practices are compliant.
The Federal Election Commission recently held a public hearing to discuss its March 2018 proposed rule aimed at providing voters with more information about who pays for or sponsors online political advertisements. The private sector has adopted a solution to the issue.
On May 22, 2018, the Digital Advertising Alliance (DAA) took the first step to alter the status quo by unveiling a new, industry-wide PoliticalAds transparency initiative designed to bring greater transparency and accountability to the realm of political advertising.
Similar to the DAA’s YourAdChoice program, which provides consumers with easily accessible information via the familiar blue triangle that accompanies interest-based ads, the PoliticalAds initiative will require certain political advertisements to supply information and a comparable purple icon.