Episode 6 of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Made in USA Claims” here, or search for it in your favorite podcast player.

Many customers like to “buy American” and are willing to pay more to do so. However, if you want to call out your product’s homegrown attributes, you should know that the Federal Trade Commission (FTC), as well as some states, including California, have created very specific guidance and laws on what it means for a good to be of domestic origin.

In this episode, Venable partner Mary Gardner and associate Jay Prapaisilp look at the FTC’s detailed Made in USA guidance on product manufacture, sourcing, assembly, and labeling and the penalties for violation.

Continue Reading Listen to Venable’s Ad Law Tool Kit Show Podcast – “Made in USA Claims”

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

Episode 4 of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Green Claims” here, or search for it in your favorite podcast player.

Protecting the environment and practicing social responsibility not only benefit the planet, but also provide a compelling value proposition. The Federal Trade Commission (FTC) has issued detailed guidance for marketers about how to substantiate green claims, and states are increasingly passing laws governing environmental advertising.

In this episode, Venable partner Claudia Lewis discusses how marketers can promote the environmentally conscious aspects of their products while avoiding so-called greenwashing.

Continue Reading Listen to Venable’s Ad Law Tool Kit Show Podcast – “Green Claims”

By a 3-2 vote, the Federal Trade Commission (FTC) announced its Final Negative Option Rule that covers negative option programs for both consumer and B2B transactions in any media, including online, telephone, print, and in-person. The rule finalizes many of the requirements we previewed last year. Commissioner Melissa Holyoak’s dissent outlines many of the issues that those challenging the legality of the rule are likely to soon raise. 

Under the rule, companies selling goods or services with a negative option feature will be prohibited from:

  • Misrepresenting any material fact in advertising and marketing. The FTC expressly declined to limit this prohibition solely to elements of a negative option program and instead defined “material” to mean “likely to affect a person’s choice of, or conduct regarding, goods or services.” A non-exhaustive list of potential misrepresentations includes the cost, purpose, efficacy, and health or safety of the good or service.
  • Failing to disclose material terms clearly and conspicuously prior to obtaining the consumer’s billing information. The rule specifies that disclosures must be “unavoidable” and not contradicted or mitigated by, or inconsistent with, anything else in the communication.
  • Failing to obtain the consumer’s unambiguous affirmative consent before charging them. This must be done separately from any other portion of the transaction, and no other information may be included that detracts from, contradicts, or undermines the consumer’s ability to provide their express informed consent.
  • Failing to provide a simple mechanism to cancel and immediately stop charges
Continue Reading FTC Announces Final “Click-to-Cancel” Rule on Negative Options, Autorenewals, Free-to-Pay, and Subscription Services

Episode 3 of Venable’s Ad Law Tool Kit Show, Season 2, is now available. Listen to “Drip Pricing” here, or search for it in your favorite podcast player.

In 2023, the Federal Trade Commission identified two junk fees-related practices it wanted to regulate—omitting mandatory charges and fees from advertised prices and misrepresenting the nature and purpose of the charges or fees. States have been active as well. “Junk fees” or “drip pricing” would be replaced by the “Total Price,” which businesses would be required to clearly disclose.

Continue Reading Listen to Venable’s Ad Law Tool Kit Show Podcast – “Drip Pricing”

It’s October and, in addition to playoff baseball, that means the Supreme Court is back in session. The Court has chosen to hear arguments in two cases with significant ramifications for advertising law. Both cases will impact the risks and liabilities faced by companies accused of false or misleading advertising practices nationwide.

In Medical Marijuana, Inc. et al. v. Horn, the Court will decide whether plaintiffs may bring suit under the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to recover economic damages resulting from personal injuries. In Dewberry Group v. Dewberry Engineers, Inc., the Court will determine whether the Lanham Act permits district courts to penalize corporate subsidiaries for trademark infringement.

Continue Reading Medical Marijuana and Dewberry: The Supreme Court Tackles RICO and Lanham Act Claims

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

For decades, email marketing has been an important tool that businesses use to reach customers. But in recent years, marketers have had to comply with an increasing number of laws enacted to protect a consumer’s privacy and address so-called spam.

In this episode, I talk to Venable partners Ellen Berge and Ari Rothman about what companies should keep in mind as email marketing lawsuits are on the rise.

Venable’s Ad Law Tool Kit Show will help you identify potentially problematic advertising and marketing practices, or avoid them altogether. Season 2’s episodes examine such topics as Made in USA claims, litigation trends in privacy laws, and marketing to children.

If you have specific questions after listening to this episode, don’t hesitate to contact me, Ellen, or Ari to arrange a conversation. You can also download the complete Tool Kit or bookmark the link to our e-book for quick access to these industry best practices.

And if you haven’t already, be sure to subscribe to this award-winning blog, and tune in to our comprehensive webinar series, where our team addresses current events and examines themes and issues important to advertising and marketing.

And tune in next week for a conversation between Len Gordon and Venable partner Ellen Berge and associate Jay Prapaisilp on “Drip Pricing.”

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 negative option and continuity marketing in this week’s episode.

The Federal Trade Commission (FTC), state attorneys general, and class action plaintiffs continue to scrutinize negative option and continuity offers. Negative option marketing can include pre-notification negative option plans, continuity programs, automatic renewals, and free-to-pay (or discounted price-to-pay) conversions.

Continue Reading Negative Option and Continuity Marketing: An Excerpt from the Advertising Law Tool Kit