Criminal charges against six individuals allegedly involved in a telemarketing scheme targeting elderly people were brought today by the US Attorney’s Office for the Southern District of New York. According to the Complaint, the defendants contacted elderly consumers with business opportunities requiring nothing more than a simple cash investment. The consumers were promised that they would see large returns on that investment without them needing to do anything other than the initial investment. After making the investment, the consumers would then receive additional telemarketing calls offering other services such as coaching, business development, and tax preparation services. The Complaint alleges that none of the consumers received what they were promised.
The ASA received 23 complaints from individuals believing that the game content for No Man’s Sky (“NMS”) was not the same as was advertised on Steam (Steam is an entertainment platform where, among other things, video games are advertised to Steam’s gaming community). The Complainants challenged a number of advertised NMS features including that: (1) the gameplay footage on Steam misrepresented the game; and (2) the in-game graphics did not match the advertisement.
The game developer — Hello Games — provided the ASA with evidence about NMS, including a play-through of the game from the beginning that lasted 4 hours; user-uploaded, video-sharing content of the game; and a copy of NMS. Hello Games responded to the complaints that “unlike most games” each part of NMS was “procedurally generated rather than manually developed.” In other words, NMS used algorithms to determine what content a particular plaintiff encountered; that the user experience was not scripted; and each player would have their own individual experience.
Perhaps some readers once (or still do!) enjoyed some Natty Light while listening to the Beastie Boys. Some time ago, we blogged about the ongoing Beastie Boys litigation against Monster Energy over copyright and right of publicity issues for a video Monster Energy posted on its website. The next case to watch is Kraft v. Anheuser-Busch, LLC where individual Kayla Kraft sued Anheuser-Busch for copyright infringement, invasion of privacy, and violation of her right of publicity for using her image in an advertising campaign. This quite delightful photo shows Ms. Kraft drinking a beer and wearing a fake mustache and was allegedly used by Anheuser-Busch on posters and coasters in its “Every Natty Has a Story” Natural Light campaign. According to Kraft’s complaint, a friend took the picture of Ms. Kraft with Kraft’s phone in February 2013. Ms. Kraft then posted the photo to Facebook. Her friend later assigned her copyright in the photo to Ms. Kraft who registered the photo with the U.S. Copyright Office, and Kraft sued on February 20, 2016. Anheuser-Busch’s Answer is due by April 7, 2017.
I have spent much of last week, when International Women’s Day was held, pondering how I can #BeBoldForChange in a time when working for a more inclusive, gender-equal world has never been more important, at home or abroad. Forgive me as this is not the usual blog on legal developments, but since I have this little blog soapbox, I thought I would exercise it just a bit.
On Wednesday, the actual day of International Women’s Day, I spent a wonderful evening in the new Venable DC office at an event honoring the Power of Resilience with an insightful conversation between my partner Stephanie DeLong and Debra Smilley-Wainer, the Senior General Counsel — International at Raytheon Intelligence, Information and Services (IIS). Later in the evening, I was rocked to my core at the Vital Voices Global Leadership Awards honoring women from around the world serving on the frontlines of change, including a Malawai chief who is reversing child marriages and ensuring girls have access to schools, and a digital activist in India using crowd source data to pinpoint and combat sexual violence in India. And I was not alone, of course. The press reports the First Lady spoke about equality and a focus on education for women at a White House lunch honoring International Women’s Day.
Which foods deserve to be labeled as “healthy?” The FDA considered this question at a public meeting on March 9th.
This public meeting was the latest stop on the FDA’s journey to redefine the term “healthy” in food labeling. The journey started almost 2 years ago in March 2015 when KIND received a warning letter from the FDA stating that many of its products labeled “healthy” were misbranded. KIND’s products, of which nuts are a primary ingredient, exceeded the “low saturated fat” threshold required to make the nutrient content claim “healthy” under FDA regulations.
Under the Telephone Consumer Protection Act (TCPA), businesses generally may not place an autodialed telemarketing call or a telemarketing call that delivers a pre-recorded message unless the recipient has provided his or her prior express consent to receive such a call. Recently, the Sixth and Ninth Circuits ruled on whether a business may place a telemarketing call or send a telemarketing text message to a prior customer. Specifically, the courts weighed in on whether a business may continue to send such telemarketing communications under the TCPA when the agreement governing the parties’ relationship, through which prior express consent was obtained, is terminated or has expired. These decisions further muddy the water in a legal area that is already murky at best.
Many businesses acquire commercial liability insurance coverage to protect against “advertising injury” resulting from their marketing practices. But while the term “advertising injury” on its face may sound comprehensive, its definition in the insurance policy may be narrower than you think. As a result, some businesses have received a rude awakening after learning: (1) they are being sued for false advertising; and (2) their insurance company is not going to pay for it.
Vitamin Health faced this exact situation after it was sued by Bausch & Lomb based on advertising that promoted the health benefits of its Viteyes® supplements for eye health. Vitamin Health’s ad campaign promoted the supplements as “AREDS 2-Compliant,” which means they contained a combination of vitamins recommended by the National Eye Institute’s Age-Related Eye Disease Study (AREDS). Bausch & Lomb filed suit against Vitamin Health for patent infringement, but later amended its complaint to add a false advertising claim after Vitamin Health “change[d] the formulation” of its eye supplement so that it was no longer AREDS-2 Compliant. According to Bausch & Lomb, Vitamin Health reduced the level of zinc in Viteyes® from the AREDS-recommended 80 mg to 25 mg, rendering the product no longer compliant with AREDS 2.
On January 22, 2017, serial Telephone Consumer Protection Act and Fair Debt Collection Practices Act plaintiffs, Craig Moskowitz and Craig Cunningham, filed a petition for rulemaking and declaratory rulings before the Federal Communications Commission (FCC), requesting that the FCC issue a rule that, if passed, would eliminate the “prior express consent” standard for non-solicitation calls to cell phones using an autodialer or pre-recorded message. Instead, the proposed rule would require the same standard that solicitation calls require, that is, “prior express written consent.” The new rule may have a crippling effect to businesses relying on the current rule, such as debt collectors. The FCC has issued a public notice seeking comments by March 10, 2017.
Breathalyzer accuracy is serious business. While the instructions may indicate “blow here,” that instruction does not apply to marketers of the device. The Federal Trade Commission (“FTC”) drove this point home in a recent settlement with the marketer of an app-supported breathalyzer device that no doubt left the marketer feeling a bit hungover. The settlement also serves as a reminder that the FTC maintains broad unfairness authority which in this case applied to degradation of product performance over time. The settlement is also part of the FTC’s continuing focus on the burgeoning smartphone app marketplace.
The FTC in its complaint alleged that in advertising its “Original” and “Breeze” breathalyzer device variants, Breathometer falsely stated that the products were proven, through rigorous government lab-grade tests, to accurately measure consumers’ Blood-Alcohol-Content (“BAC”). Breathometer also claimed that its Original device was as accurate as other high-end breathalyzers, and that its Breeze variant was more accurate than other high-end breathalyzers and was a “law-enforcement grade product.”
It’s our favorite time of year, when we get to see the best, boldest, and bravest duke it out. Oh sure, there’s the football, but we’re talking about the ads! It’s one of the busiest nights of the year for ad lawyers, enjoying ads we worked on come to life (and seeing the disclaimers we lovingly and painstakingly crafted) and responding in real time to “can we tweet this?” We blog every year about our favorites (see here and here and here and here) and trends. We were happy with a game in overtime, as it meant – that’s right – MORE ADS! And we understand social media was up over last year but did not exceed 2015’s record numbers. But still, 27.6M tweets, 240M Facebook interactions, and 150M Instagram interactions is pretty big stuff.