Category Archives: Internet/Social Media

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New York AG Targets “Deceptive” Online Endorsements

On February 11, 2016, New York Attorney General Eric T. Schneiderman announced four independent settlements related to the use of allegedly deceptive online testimonials and reviews.  These cases reflect continuing concern by the New York Attorney General’s office over “astroturfing” (the posting of fake or otherwise biased reviews).  We wrote about theses enforcement actions previously … Continue Reading

When It Comes to the Year’s Biggest Sporting Events, Don’t Fumble Your Ad Campaign

Will the Patriots’ dreams of heading to this year’s Super Bowl® get deflated? What, exactly, will Olympic® gold medalist Ryan Lochte do in Rio? How much madness will March cause? This year will be a big one for sports fans and advertisers alike, with Super Bowl 50 and March Madness® around the corner, followed this … Continue Reading

FTC Settlement Sheds Light on Claims of Increased Cognition

It doesn’t take a genius to know that health claims are on the FTC’s radar.  In fact, at last year’s NAD conference, Commissioner Brill said that the FTC will prioritize enforcement of unsubstantiated health claims, such as cognitive claims.  We have blogged about learning claims before, including the Word Smart case.  However, Lumosity, which created … Continue Reading

No Cop Out in COPPA: The FTC’s First Enforcement Actions on Persistent Identifiers

Last week, in settlements with two app developers, the Federal Trade Commission (“FTC”) announced its first enforcement actions under the Children’s Online Privacy Protection Rule (“COPPA Rule”) amendments on persistent identifiers.  Persistent identifiers are data that can be used to recognize a user over time and across different websites or online services.  In 2012, we … Continue Reading

FTC Keynote at BAA Conference: Outpacing Zombies in Today’s Digital Marketplace

FTC Deputy Director Daniel Kaufman launched into his keynote address at this year’s BAA marketing law conference by comparing the modern digital marketplace to the most talked about TV series as of late: The Walking Dead.  He pointed out that the show has spawned active social media engagement and user generated content (#GlennIsAlive…or is he?), … Continue Reading

Under the Influence

As Uncle Ben once said, “With great power comes great responsibility.”  But Peter Parker had to learn the hard way, and marketers and social influencers sometimes need to as well.  Well-known influencers can come from anywhere – some have big screen starts, others are video game superstars, and still others are makeup geeks.  Some even … Continue Reading

Your Social Media Policy, the FTC and the DOL

When your employees “speak” in social media, using their personal social media accounts, what they “say” may interest at least two different federal agencies with different agendas.  The Federal Trade Commission (FTC) regulates endorsements your employees may make related to their employment, while the Department of Labor (DOL) enforces the labor law that entitles employees … Continue Reading

Broadening Your Self-Regulatory Options – 2 Sheriffs in Town

The Advertising Self-Regulatory Council operates several self-regulatory programs including CARU, NAD and ERSP.  Traditionally these have been thought of as distinct programs – CARU regulates marketing to children, ERSP regulates companies that market and sell their products electronically while NAD oversees most traditional national advertisers.  While this compartmentalization is largely true, there is some overlap … Continue Reading

CARU Heats up with Fireside Chat about Hot Button Issues in Children’s Marketing with Commissioner McSweeny

Huddled in front of a digital hearth on the third and final morning of the NAD Annual Conference, FTC Commissioner Terrell McSweeny participated in a cozy fireside chat about children’s marketing with ASRC President and CEO, C. Lee Peeler. The newest FTC Commissioner reported (or warned!) that she is closely following the evolution of marketing … Continue Reading

Survey Says: NAD Panel Weighs in on Surveys

In contrast to a general emphasis on new data and new claims at the 2015 NAD conference, NAD staff attorneys, advertising lawyers, and survey experts took the time to weigh in about the emphasis NAD will continue to place on traditional best practices of consumer surveys for claim substantiation or challenge.  Although online surveys programs … Continue Reading

Live From New York, It’s …The NAD Annual Conference

Well, not quite live.  This week we’ll be providing updates from the NAD Annual Conference, which kicked off today in New York.  The keynote address was given by  FTC Commissioner Julie Brill, who reminded the audience that while the advent of the internet age and social media has radically changed how advertisers market their products and … Continue Reading

Hear! Hear! FCC Modernizes Contest Rules for Broadcasters

The days of on-air fast-talking contest announcements are coming to an end.  Last Thursday, the FCC adopted revised rules that allow broadcasters to disclose contest rules on an Internet website, as opposed to reading them over the air.  Prior to this rule change, under the FCC’s “Contest Rule” (47 C.F.R. Section 73.1216), broadcasters that advertised … Continue Reading

FTC and YouTube Channel Machinima Don’t See Eye to Eye

In yet another sign that the FTC is serious about enforcing its now not-so-new Testimonial and Endorsement guides, the agency just reached a settlement with Machinima over an influencers’ campaign designed to promote Microsoft’s Xbox One and several game titles for the console.  And, on a related note, if your company doesn’t already have policies … Continue Reading

FDA Warns About Celebrity Social Media

Kim Kardashian is everywhere. But there were some bumps in the road when she took to social media on behalf of the drug company Duchesnay, Inc. to promote its morning sickness drug Diclegis. On Instagram, Ms. Kardashian breathlessly told her followers “OMG. My morning sickness has been bad. My doctor prescribed me Diclegis, and I … Continue Reading

Payment Processing Alert for Internet Retailers: The October 2015 EMV Shift Will Complicate Your Chargeback Management Efforts

What if your chargebacks increased by 40%, practically overnight?  This is one estimate by payments industry experts of the potential impact on card-not-present (CNP) merchants that could result from the October 2015 shift to EMV chip technology in the U.S. market.  Payments companies are worried that many CNP merchants, including Internet retailers, aren’t prepared to … Continue Reading

Age-Gating Your Website: Do Not Make it a Scandal

‎”Gates” as scandals probably started with Watergate but many other embarrassments followed suit with a similar gating moniker. Nipple-gate or Janet Jackson’s Superbowl wardrobe malfunction, Zoe Baird’s Nanny-gate are just a few. Age-gating your website to make sure it is COPPA-compliant should not give rise to messy press and finger-pointing. ‎Web designers and marketers need … Continue Reading

Website Owners: No Safe Harbor from Copyright Liability for Infringing Content Posted by Third Parties on Your Site If You Are Not Following DMCA Formalities

Did you know that, under the U.S. copyright law, if a third party uploads or posts copyrighted material to your website, and the third party did not have authorization to do so from the copyright owner or exclusive licensee of that material, your organization can be held strictly liable for copyright infringement as the operator … Continue Reading

Court Attempts to Smooth out ROSCA Violations

As we’ve mentioned before, and as this year is unfolding, it looks like the Federal Trade Commission (“FTC”) is even more desperate to enforce the Restore Online Shoppers’ Confidence Act (“ROSCA”) than we are to find good skin care products.  The FTC has begun expanding its enforcement of ROSCA into various industries, including now the … Continue Reading

Don’t Doom Your Crowdfunding Project with the FTC: Keep Your Promises

The crowdfunding world got a bit more crowded this week–from a legal perspective, at least–when the Federal Trade Commission entered the fray with its first crowdfunding case against a project creator and his allegedly deceptive Kickstarter® Campaign.  The FTC announced Monday on its website that it took action under Section 5 of the FTC Act … Continue Reading

FAQ Series 1: FTC Issues New Guidance on Endorsements and Related Online Disclosures

When preparing to run advertising that includes endorsements, our clients frequently ask whether any “magic words” are necessary and how disclosures should be made on space-constrained forums such as Twitter.  On May 29, 2015, the Federal Trade Commission (“FTC”) staff announced it had addressed some of these questions by updating the FAQs to its Guides … Continue Reading

FTC Leads Charge Against Deceptive Affiliate Marketing Tactics

In recent years, affiliate marketing has emerged as a profitable medium to generate interest in a merchant’s products or services, with affiliate marketers often earning huge payouts for generating leads or sales for merchants.  The FTC has taken notice, filing a number of actions against affiliate marketers for violations of Section 5 of the FTC, … Continue Reading

ESPN’s Fantasy Fulfilled? Network Reportedly Nearing Purchase of Significant Stake in Fantasy Sports Site DraftKings

While March Madness has cooled down, the news around fantasy sports keeps heating up.  We recently wrote about the National Advertising Division (NAD) decision in the dispute between the two leading daily fantasy sports sites, DraftKings and FanDuel.  ESPN is reportedly in talks with DraftKings to invest $250 million in the company.  For years, the … Continue Reading
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