Opting OutWhat do golf and sex have in common? According to the old joke: They’re two things you don’t have to be good at to enjoy. Similarly, some men – ok, most men – tend to exaggerate their prowess at both. You can add one more common trait: The FTC scrutinizes online continuity offers for the accessories associated with both, as the FTC last week settled a case involving lingerie and we blogged previously about the FTC’s golf ball ROSCA case, which settled recently. One final note on the connectivity between golf and lingerie: Supermodel and actress Kelly Rohrbach appeared in lingerie on the AdoreMe site and played college golf.

On November 20th, the FTC filed suit in New York against an online seller of lingerie for violating the FTC Act and Section 5 of the Restore Online Shoppers’ Confidence Act (ROSCA). According to the complaint, AdoreMe generates most of its revenue from its “VIP members.” For $39.95 a month, VIP members receive discounted prices, but are not charged if they buy apparel within the first five days of each month or affirmatively click a button to skip that month. If a consumer forgets to click the button or buy something within the first five days, the amount becomes store credit that supposedly can be used at any time. However, according to the FTC, many consumers were surprised to learn that the store credit could not be used at any time. The FTC alleged that AdoreMe failed to disclose that if a consumer cancelled their VIP membership, their store credit would be forfeited. The FTC sought $1.3 million for the forfeited store credit.


Continue Reading Sex, Golf, and the FTC

e-commerceAs states continue their quest to compel online vendors to collect sales and use tax on sales to customers located in the state and to subject such vendors to state income tax, a current trend has been targeting vendors selling via online marketplaces. Some states assert that the presence of inventory held for a vendor or the presence of the marketplace provider/facilitator in a state acting on behalf of a vendor is sufficient nexus or connection of the vendor with the state to subject the vendor to the state’s taxing jurisdiction. 

The Multistate Tax Commission (MTC), an intergovernmental state tax agency that works on behalf of the states and taxpayers to facilitate the administration of state tax laws, is coordinating a Voluntary Disclosure Settlement program (VDA program) to enable retailers that sell their products online using a third-party marketplace provider/facilitator (such as Rakuten) to register with a state for current and prospective tax compliance and at the same time settle tax obligations for prior years.


Continue Reading Marketplace Vendors Offered Voluntary Closing Agreement Program for State Tax Exposure

Social Media AppsBig day at the FTC for influencer announcements! The FTC announced its first ever settlement with social media influencers. At the same time they followed up with a second round of warning letters to a large group of influencers. Finally the FTC updated its FAQs on endorsements with some guidance, including its current views about what phrases are and are not clear in disclosing a material connection. Let’s debrief:

Unlike the unfortunate settling social media influencers, the FTC in its consent order against the online gaming community influencers, Trevor “TmarTn” Martin and Thomas “Syndicate” Cassell, is loud and clear about its stance regarding marketing and promoting on social media – clearly disclose any business ties or financial incentives. In other words, a social media influencer must disclose all material connections, if any, to the product or service he or she endorses.


Continue Reading The FTC’s Influence Reaches Influencers: FTC Settles First Ever Complaint Against Social Media Influencers

little girl and laptopOn June 21, 2017, the Federal Trade Commission (FTC) updated one of its Children’s Online Privacy Protection Act (COPPA) compliance guides for businesses. Known as the “Six-Step Compliance Plan,” this document provides a step-by-step road map for determining if a company is covered by COPPA and what to do to comply.

COPPA applies to operators of websites and online services that collect “personal information” from children under 13 years of age, where the site or service is directed to children or has actual knowledge that it is collecting personal information from a child. COPPA’s coverage extends to a variety of online services, such as mobile apps, internet-enabled gaming platforms, and – in some cases – companies that collect personal information directly from users of another website or online service (such as ad networks and plug-ins).


Continue Reading FTC Updates COPPA Guidance for IoT and New Consent Options

hashtagIt is no secret that influencer marketing—in which social media influencers have the ability to engage with their followers and create “organic” content about a particular product or service—is a huge asset for companies. It is also no secret that advertisers, agencies and influencers alike are often confused about how to comply with the FTC’s Guides Concerning the Use of Endorsements and Testimonials. While the FTC has attempted to clarify its position in subsequent FAQs and enforcement actions—and, most recently, in a “sweep” of “educational” letters we blogged about in April—it’s become increasingly clear that when and how to disclose might never be clear-cut. But it might be getting clearer, with some help from the social media platforms. Below are examples of how such platforms are taking new steps to address how branded content is disclosed:
Continue Reading The End of the #ad? A Turning Point for Branded Content on Social Media

Virtual DataIn the most recent edition of Digital Media Link, we explore the legal issues surrounding new technologies, with a particular focus on augmented and virtual reality. As we have seen time and again, new technologies do not necessarily mean new statutes or case law, which usually are slow to catch up. What is a

If you attended our successful advertising law symposium last week, you may recall that we talked through a series of mobile app designs – including dos and don’ts – for creating enforceable terms of use. Recall this slide in particular:

mobile app designs slide


Continue Reading California Court Confirms: Mobile App Design Can (Will) Affect Enforceability of Terms of Use

hashtagWe previously blogged a few weeks ago about the FTC’s sweep of influencers and warning letters being sent regarding whether material connections are disclosed, and if so, if they are done clearly and conspicuously. The FTC has issued a press release with more detail. We now know there were over 9‎0 such letters sent. For

Given the ubiquity of emoji, businesses have used them in commercial ad campaigns. Honda has used emoji in creative advertisements, releasing Aprils Fools’ ads in 2016 and again in 2017. Twentieth Century Fox created some buzz last year when it placed a billboard in Los Angeles advertising a movie release (guess which one) with the following message:

Deadpool Teaser Poster

Translation: “Deadpool.” Adweek wrote an article entitled: “Deadpool’s Emoji Billboard Is So Stupid, It’s Genius.”


Continue Reading Copyright Considerations for using Emoji in Commercial Ads