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.

Communicate “Clearly and Conspicuously”

Automatic renewal programs are also subject to an ever-changing patchwork of laws and regulations in the U.S. One essential overarching element of compliance is providing “clear and conspicuous” disclosures to customers, said partners Shahin Rothermel and Ari Rothman. Companies are required to disclose all material terms of an automatic renewal transaction clearly and conspicuously before collecting a customer’s billing information.

The Federal Trade Commission (FTC) closed the comment period for its proposed rule on unfair or deceptive fees in February. The proposed rule is intended to stop companies from leaving mandatory charges and fees off of advertised prices and misrepresenting the nature and purpose of the charges and fees, said partner Ellen Berge and associate Jay Prapaisilp. The FTC proposed rule calls for businesses to “clearly and conspicuously disclose the total price, or maximum of all fees or charges a customer must pay for a good or service and for any mandatory ancillary good or service.” The CFPB and several states are also focused on “junk fees.”

Be Serious About Substantiating Claims

The importance of substantiating claims was another topic that ran through several of the day’s sessions. Partner Todd Harrison and associate Richard Starr identified it as a key concern for companies producing cosmetics, dietary supplements, and other health-related products. Among other things, the Modernization of Cosmetics Regulation Act (MoCRA) already requires substantiating product safety and soon will require using standardized testing methods for detecting asbestos in talc-containing cosmetic products. The FTC Health Products Compliance Guidance was updated in 2022 to cover “any health-related product,” not only dietary supplements, and includes updates to the substantiation standard for quality and interpretation of clinical studies.

When companies don’t sufficiently substantiate environmental and “green” claims in their marketing, it can cause both legal and reputational problems, said partner Len Gordon, associate Kaelyne Wietelman, and BBB National Programs vice president Laura Brett in their presentation. The FTC’s Guides for the Use of Environmental Claims (“Green Guides”) were last revised in 2012, and the FTC has called for comments on several topics before updating the Green Guides. For now, companies should remember that green advertising can be any communication—text, imagery, logos, labels, etc.—that states or implies green claims.

Comparative advertising can be a powerful marketing tool, but only if it’s backed by “substantiation on steroids,” said partners Roger Colaizzi, Mary Gardner, and Hemu Nigam. That level of substantiation requires data from a broad range of sources and analysis of all findings, said Hemu, who heads up the Venable Blue team. That team supplements attorneys’ work to build comprehensive risk-mitigation solutions for clients.

Prepare for Tougher Texting and Telemarketing Laws

The FTC, Federal Communications Commission (FCC), and various states have made recent changes to the laws governing telemarketing and marketing via text, and more changes are coming soon, said partner Liz Rinehart and associate Michael Munoz. Some requirements poised to become stricter include obtaining prior express written consent, disclosing the use of AI, and honoring consumer opt-outs.

Nostalgia, Lanham Act, and AI

Partner Melissa Steinman and associate Shannon Sansom brought some levity and nostalgia to the program with their Choose Your Own Adventure-themed exploration of the legal challenges marketers must consider before running sweepstakes, contests, and interactive promotions. Associate William Lawrence reviewed Lanham Act developments and ran through several cases, explaining how they turned out and why.

Then in the final session of the day, partner Eric Prager and associate Micah Wallen spoke directly to the attorneys in the room about the ethics of using generative AI in their work. At least four of the American Bar Association’s Model Rules of Professional Conduct come into play when attorneys use generative AI: Rule 1.1, Duty of Competence; Rule 1.3, Duty of Diligence; Rule 1.6, Duty of Confidentiality; and Rule 3.3, Duty of Candor.

Learn more about the 10th Advertising Law Symposium, visit the All About Advertising Law blog to hear more from Venable’s Advertising and Marketing Group, listen to our Ad Law Podcast, and sign up to be among the first to know about upcoming events hosted by the group.