2013

Phone_messageFor all of you procrastinators out there, we are down to the wire on preparing for the October 16 changes to Federal Communications Commission (“FCC”) rules that will require “prior express written consent” when an automatic telephone dialing system (autodialer) is used to call or text cell phones for marketing purposes.  “Prior express written consent” means the consumer’s agreement – in writing and signed, either on paper or as allowed electronically under the E-SIGN Act – that clearly authorizes the seller to deliver telemarketing calls or messages using an autodialer and states the telephone number to which such calls or messages may be delivered.

Moreover, the written agreement must include a clear and conspicuous disclosure that (a) the consumer is authorizing calls to be delivered using an automatic telephone dialing system (or, if applicable, a prerecorded voice), and (b) the consumer is not required to provide consent as a condition of purchasing any property, goods, or services.  For non-marketing, information-only calls and texts, the old “prior express consent” standard (which could be verbal or written) will continue to suffice.  You’ll want to be careful about whether your idea of an information-only message is the same as the FCC’s.

Here are three things you should know as you finalize compliance with the new rule.
Continue Reading Three Things You Should Avoid Doing with Respect to the October 16 FCC Rule Changes for Calling or Texting Cell Phones

Cause_ribbonsToday cause marketers will have reason to celebrate in Maine, as Maine’s repeal of its commercial co-venture laws will be effective.  Earlier this summer, the Maine legislature passed the “Act to Streamline the Charitable Solicitations Act” (yes, the “Act Act,” although we will refer to it as the “Act”).  Along with streamlining requirements for charities soliciting contributions, the Act also repealed all of Maine’s requirements for commercial co-ventures, or persons or companies that “conduct a sale, performance, event, or collection and sale of donated goods that is advertised in conjunction with the name of a charitable organization.”  The most common form of this type of promotion, also referred to as cause marketing, involves advertising that a percentage or dollar amount of a consumer’s purchase of a good or service will benefit a charity.  Cause marketing is particularly popular in the month of October when it seems entire aisles of products turn pink for Breast Cancer Awareness Month.

Maine’s repeal is significant considering that Maine had previously been one of the more onerous states for cause marketers requiring that the company conducting the promotion register with the state prior to the promotion, obtain a $25,000 bond, and submit a $250 application fee.  Cause marketers also had to submit financial reports with Maine-specific information on the number of products sold and the resulting donation to charity after the campaign’s conclusion and submit yearly renewals of their registration paperwork and bonds if they wanted to continue to conduct commercial co-ventures in Maine.  All of these requirements have now been repealed.
Continue Reading Cause Marketers Rejoice (at least in Maine)

This blog reports frequently on the troubles Syringemarketers get into with the FTC, State AGs, the NAD, under the Lanham Act, or from class actions based on making allegedly false statements about their products or their competitors’ products.  A recent $113 million jury verdict in Texas reminds us that the antitrust laws can come into play as well for such conduct, if an actor with monopoly or market power can be said to be unlawfully excluding its rivals by its advertising or marketing techniques. 

Retractable Technologies (“Retractable”) developed a disposable retractable point or “safety” syringe designed to reduce the risk of accidental needle sticks for health care workers and to eliminate the possibility that syringes would be reused.  Among other things, these features would help reduce the risk that health care workers would be exposed to the HIV virus and that used syringes would be re-used for illegal drug use.  Becton Dickinson (“BD”) possessed a dominant share of the existing conventional disposable syringe market.  In response to Retractable’s introduction of the safety syringe, BD introduced its own safety syringe.  Litigation involving claims of patent infringement, monopolization, restraint of trade, and false advertising ensued.
Continue Reading Ouch, Treble Damages in False Advertising Cases?

Word on the street is that a big law went into effect last Tuesday.  President Obama’s healthcare law, you say?  Okay, fine, that answer is technically correct, but it’s not the only landmark legislation that took effect.  Moreover, the law we’re referencing did not trigger a massive government shutdown (much to the chagrin of various cosmetic and OTC drug manufacturers).

California’s groundbreaking Safer Consumer Products (“Green Chemistry”) Regulations officially became effective October 1, 2013.   As noted in a blog post a few weeks ago, these regulations help implement the State’s Green Chemistry Initiative designed to accelerate the use of safer products through a science-based process that evaluates chemicals of concern and identifies safer alternatives.  The implementation of the regulations has four primary steps, the first being the publication of an informational list of Candidate Chemicals before November 1, 2013.
Continue Reading California’s Green Chemistry Initiative Gets Focused, Issues Initial Candidate Chemical List

NAD has now brought another monitoring case against an advertiser of mascara showing spokesmodel starlets with lashes that were plumped or lengthened with something other than the advertised product. The prior cases involved post-production retouching and the newest case against L’Oreal involves adding some eyelash inserts to the models in two different ads. The express claims in the spots were all found to be substantiated adequately, including 8x bigger, smoother, even, length plus impact without extensions. NAD’s position, and it has been consistent, is that celebrities in mascara ads are not simply brand endorsers but are live product demonstrations and as such, their lashes cannot be altered with anything other than the advertised mascara. And a disclosure that the shown lashes were enhanced post- or pre-production will not cure any alleged deception (here L’Oreal added “styled with lash inserts”). NAD asserted that the advertising reasonably conveys that the model got her long lashes solely from the mascara and that customers will get lashes like those depicted.
Continue Reading NAD Product Demonstration Finding Not So Pretty for Advertiser

Communications_TowerThe cell phone wars should ensure the continuing viability of NAD and Lanham Act courts for all time. As noted in a recent challenge by AT&T to T-Mobile advertising, this is an industry that is rapidly innovating and highly competitive, and characterized by direct comparative claims.  ‎Staying on the right side of the line, as…

Beginning Monday September 30, NAD, CARU and ERSP hold their annual conference on advertising issues in New York City. (For a link to the conference click here). We’ll be there and we suspect many of you will be too. If you are or if you’re already in the NYC area or you just want…

astroturfTo many sports fans, Astroturfing means laying down plastic grass especially for use in the multi-purpose stadiums so popular in the 1960s and 70s.  As a playing surface, AstroTurf was known to be hazardous to the bones and joints of those who played on it.  Today, however, the term Astroturfing has taken on a new …

spaghettiA recent NAD decision once again illustrates how the NAD is often at the forefront of opining on many currently trending claims.  The holy grail for any pasta loving carb avoider ‎is a great tasting but healthier spaghetti. And as companies increase their whole grains and overall nutritional profile, comparative claims and challenges are sure…