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Shahin O. Rothermel

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Shahin Rothermel is an experienced counselor and defender who helps advertisers, retailers, merchants, and marketers advance their business goals while reducing legal and regulatory risks. Shahin provides clients with up-to-date, practical insights into the constantly evolving advertising, marketing, and e-commerce regulations, which allows her clients to make informed decisions. She has achieved successful resolutions, dismissals, and full walkaways in court, saving clients millions of dollars. She takes a pragmatic approach as a counselor, considering the implications of her advice for her clients' marketing campaigns and their bottom lines.

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Ending speculation and uncertainty about whether new leadership at the Federal Trade Commission (FTC) would repeal or continue to defend the agency’s Negative Option Rule, which regulates offerings such as autorenewal of subscription services, this week the agency filed a brief at the Eighth Circuit defending the rule—something of a surprise.

We previously discussed the arguments raised by industry groups that are challenging the rule. Broadly, the challengers assert that the rule exceeds the FTC’s statutory authority, is procedurally defective, and is arbitrary and capricious. The Eighth Circuit previously denied petitioners’ request to stay the rule from taking effect pending litigation.Continue Reading FTC Files Brief Defending “Click to Cancel” Negative Option Rule

The National Advertising Division (NAD) recently issued a series of decisions addressing influencer and third-party marketing. The NAD is a self-regulatory body that assesses the truth and accuracy of claims made in national advertising and refers matters to the Federal Trade Commission (FTC) if an advertiser refuses to comply with its decisions.

Influencer’s Lash Claims

NAD reviewed videos posted on social media featuring a teen influencer self-described as a brand ambassador for the cosmetic company NuOrganic. The influencer made express and implied claims about NuOrganic’s eyelash serum, including “naturally grown long lashes” and “safe for young eyes.” NuOrganic argued that it could not control statements made by the influencer, but that it does monitor posts for content that may violate its guidelines. However, NAD investigated and identified certain Instagram posts where NuOrganic and the influencer had tagged each other about the same product, making substantially similar claims. NAD concluded these posts lacked the disclosures needed to inform viewers about the material connection between the influencer and NuOrganic. NAD recommended that the company take immediate steps to discontinue the videos containing the unsupported claims.Continue Reading National Advertising Division Targets Celebrity, Influencer, and Third-Party Marketing in Recent Decisions

Last month, a putative class action was filed against Procter & Gamble challenging various green advertising claims for its Charmin toilet paper. The complaint brought a variety of state law claims targeting P&G’s sustainability claims, including “Keep Forests as Forests,” and alleged that the claims were explicitly false and misleading.

According to the complaint, P&G’s “Keep Forests as Forests” campaign made three promises to consumers by leveraging the “Protect-Grow-Restore” logo:Continue Reading Lawsuit Alleging Greenwashing Filed against Procter & Gamble for Charmin Toilet Paper

This week, the Federal Trade Commission (FTC) issued its long-awaited Final Rule on Unfair or Deceptive Fees. When the FTC released the proposed rule over a year ago, the rule covered any business that offered goods or services for sale. The Commission largely narrowed the rule’s application, which now focuses on live-event tickets and short-term lodging (defined as a hotel, motel, inn, short-term rental, vacation rental, or other place of lodging).

The Final Rule also covers third-party travel service providers, including online travel agencies and travel advisors. The FTC did not shed much light on its reasoning, but Republican Commissioner Melissa Holyoak’s concurring statement on the overly broad scope of the earlier version provides some indication of an effort to make the rule more palatable to the incoming Congress, which could repeal the rule through the Congressional Review Act.Continue Reading FTC Issues Scaled-Back Final Fee Rule Targeting Live-Event Tickets and Short-Term Lodging

Episode 11 of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Advertising Agreements” here, or search for it in your favorite podcast player.

The emergence of online, social media, and mobile advertising has made the outsourcing of marketing efforts important to many businesses. While this approach offers many benefits, businesses must ensure that their advertising agreements contain key provisions that will mitigate certain legal risks.

Venable partners Bret Siciliano and A.J. Zottola talk about how these agreements can go wrong, and some best practices that can help businesses avoid risk when outsourcing marketing campaigns.Continue Reading Listen to Venable’s Ad Law Tool Kit Show Podcast – “Advertising Agreements”

Episode 10 of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Understanding False Advertising Claims, Part 2: The National Advertising Division” here, or search for it in your favorite podcast player.

The National Advertising Division (NAD) is part of the BBB National Programs. Its mandate is to “hold national advertising…

Episode 7 of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Marketing to Children” here, or search for it in your favorite podcast player.

When marketing to children under 13, there are heightened requirements that go beyond standard truth in advertising practices. The basic idea behind these requirements is that children have a difficult time understanding that they are being given a sales pitch and distinguishing between reality and fantasy.

In this episode, Venable partner Melissa Steinman and associate Shannon Sansom discuss some best practices that companies should keep in mind when building promotions and campaigns targeted at children.Continue Reading Listen to Venable’s Ad Law Tool Kit Show Podcast – “Marketing to Children”

Episode 5 of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Litigation Trends in Privacy Laws” here, or search for it in your favorite podcast player.

Data breaches, cookie banners, chatbots, pixel tracking, and biometrics are just some of the trends in privacy law that are keeping litigators busy. Many technologies that are necessary to operate a website have become hot areas of litigation. But there are more trends, and more questions.

In this episode, Venable partner Jean-Paul Cart discusses the states that are considering new consumer protection legislation, other technologies that are being targeted by plaintiffs, and what your business can be doing to be prepared.Continue Reading Listen to Venable’s Ad Law Tool Kit Show Podcast – “Litigation Trends in Privacy Laws”

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate the legal risk of campaigns and promotions. 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 green claims in this week’s episode.

Protecting the planet against climate change is a social movement—and big business. The Federal Trade Commission (FTC) has issued detailed and specific guidance for marketers about how to substantiate so-called green claims. Unsubstantiated green claims have been, and will continue to be, an enforcement priority. The FTC has sought comments on updates to the Green Guides, and new Guides are likely to be issued in 2024. State laws have also been passed that regulate specific “green” claims, which regulators have begun aggressively enforcing. Furthermore, plaintiffs’ class action lawyers are focusing on green claims across a variety of industries, from transportation to cosmetics.Continue Reading Green Claims: An Excerpt from the Advertising Law Tool Kit

As we previewed last week, industry and trade groups wasted no time in filing challenges against the Federal Trade Commission’s (FTC) Final Negative Option Rule.

The Michigan Press Association and the National Federation of Independent Businesses filed a petition challenging the rule in the Sixth Circuit Court of Appeals, while a separate petition was filed by multiple trade associations in the Fifth Circuit. Both cases have asked federal courts of appeals to determine whether the FTC’s issuance of the rule exceeded the agency’s authority and if the FTC’s processes were arbitrary, capricious, and an abuse of discretion under the Administrative Procedure Act. The petitions also ask the courts to determine if the FTC complied with the agency’s Magnuson-Moss rulemaking requirements, claiming the rule was “unsupported by substantial evidence” and based on determinations that did not allow for consideration of “disputed material facts.”

The petitions request that the courts vacate and set aside the rule. If either petition is granted, the FTC will not be able to enforce its Negative Option Rule.

Additional challenges to the FTC’s Negative Option Rule might continue. And similar challenges against FTC rules have found success; for example, the FTC’s Non-Compete Rule was set aside and ruled unenforceable nationwide. That decision is currently on appeal at the Fifth Circuit.Continue Reading Business Groups Rush to File Federal Court Challenges to the FTC’s Negative Option “Click-to-Cancel” Rule