Last week, a security services company and several trade groups filed their merits brief in the U.S. Court of Appeals for the Eighth Circuit challenging the Federal Trade Commission’s (FTC) newly adopted Negative Option Rule, also called Click-to-Cancel. The rule introduces a host of requirements for companies selling goods or services with a negative option feature in both consumer and B2B transactions, as we outlined last year. Notably, a negative option seller must make cancellation as simple as signing up, including providing an easy online cancellation method if consumers signed up online.

The rule went partially into effect on January 14, 2025, with the prohibition on misrepresentations of material facts relating to the promotion or offering for sale of any good or service with a negative option. The remainder of the rule covering consent and cancellation requirements takes effect in May 2025.

The court previously denied petitioners’ request to stay the rule from taking effect pending litigation.

Continue Reading FTC’s “Click-to-Cancel” Rule Challenged by Industry in the Eighth Circuit

The Federal Communications Commission (FCC) under new chair Brendan Carr has issued an enforcement advisory addressing complaints that radio stations are coercing musical artists to perform for free at station events by threatening to reduce their airplay if they refuse.

The advisory warns that arrangements requiring performers to play at broadcast station events in exchange for airplay, particularly when coupled with threats of reduced airplay for non-compliance, could violate the FCC’s payola rules. These rules prohibit broadcasters from making programming decisions based on receiving anything of value without on-air disclosure of such consideration. A band’s coerced free performance could constitute such consideration and, if not disclosed during subsequent airplay, would violate payola policies.

The FCC characterized these practices as “covert manipulation of radio airplay,” noting that “[w]hen payola causes stations to broadcast programming based on their financial interests at the expense of community responsiveness, the practice is inconsistent with localism.” While commercial stations can negotiate increased airplay in exchange for event appearances, any agreement for free performances must be disclosed to listeners each time the artist’s songs are played.

Continue Reading FCC Enforcement Advisory Issued Regarding Payola and the Sponsorship Identification Requirements

Last week, President Trump issued two executive orders aimed squarely at upending the long-accepted authority and independence of certain federal agencies. The first order, Ensuring Accountability for All Agencies, derides “so-called independent regulatory agencies” that traditionally promulgate rules and regulations without requiring preclearance by the president.

The order declares such actions to be unaccountable to the American people and contrary to the Trump administration’s position that all executive power must be supervised and controlled by the president. Relatedly, the order declares that the opinions of the president and the attorney general are the only authoritative interpretations of law for the executive branch, without exception.

The order requires all executive agencies to submit all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA), which sits within the Executive Office of the President, before publication in the Federal Register. Notably, the order carves out the Federal Reserve, perhaps indicating the administration is cognizant of the potential ramifications for the broader economy if the Federal Reserve’s independence were to come into question.

Continue Reading New Executive Orders Declare “So-Called” Independent Agencies No Longer Independent

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit.

Brands operating websites or apps for cause-related marketing and charitable fundraising are increasingly regulated as charitable fundraising platforms under state laws. Historically, regulation focused on “commercial coventurers” conducting “charitable sales promotions.”

However, amendments now extend strict rules to online platforms engaging in activities like donation programs and free action campaigns. Brands may need to register, file annual reports, and obtain written charity consent. Funds must often be held in separate accounts and transferred promptly, and tax receipts must be issued within five days. Campaigns must verify charities’ “good standing,” ensure clear disclosures, and adhere to donation accounting rules.

Additionally, advertising must include material disclosures. Given evolving regulations, early planning, compliance with state-specific laws, and accurate disclosures are essential for successful campaigns.

To learn more about charitable fundraising platforms, download the 13th edition of our Advertising Law Tool Kit. For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.

With much of the administrative state in turmoil, the Federal Trade Commission (FTC) appears to be holding steady and continuing to litigate its current cases.

We previously discussed the FTC’s lawsuit against Grand Canyon University (GCU) and its president, in particular the court’s granting of GCU’s motion to dismiss, finding that the FTC could not bring claims against GCU because it was a nonprofit organization and not a “person, partnership, or corporation” within the FTC’s jurisdiction.

The court held that the FTC could bring claims against GCU only if it could establish that GCU was a “corporation,” which the act defines as either organized to carry on business for the profit of its “members” or organized to carry on business for its “own” profit. The court found the FTC had not pleaded facts to satisfy this burden, but gave the FTC leave to amend its complaint.

Continue Reading FTC Forges Ahead in Court Battle on FTC Act’s Scope Over Nonprofit Institutions (And Loses)

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

Environmental claims are a powerful tool for companies to demonstrate their commitment to sustainability and connect with values-driven consumers. However, these claims are facing increased legal scrutiny, as governments and regulators aim to close the gap between companies’ climate pledges and their corporate actions.

The recent case of People of the State of New York v. JBS highlights the growing risks associated with sustainability and environmental advertising. Filed after the National Advertising Review Board (NARB) recommended that JBS discontinue certain sustainability claims that formed the basis of the suit, this case underscores how environmental claims can invite challenges from multiple fronts, including federal and state regulators, self-regulatory entities, competitors, and consumers, and how courts are wrestling with where the lines are for such claims.

During a hearing on January 10, 2025, the Supreme Court of New York dismissed the New York attorney general’s lawsuit against JBS USA Food Company and JBS USA Food Company Holdings (JBS). But the court is allowing the AG to file an amended complaint by April 10—90 days from the hearing—to address deficiencies in the complaint. If the AG does not file an amended complaint by that deadline, the court will dismiss the case with prejudice.

Continue Reading New York Court Dismisses Suit Against JBS but Allows Attorney General to File Amended Complaint

This week, the U.S. Court of Appeals for the Fifth Circuit vacated the Federal Trade Commission’s (FTC) Combatting Auto Retail Scams (CARS) rule. Industry groups had challenged the rule, arguing that:

  • The FTC violated Section 18(b) of the FTC Act by failing to issue an advance notice of proposed rulemaking (ANPRM) before promulgating the CARS rule.
  • The FTC arbitrarily and capriciously failed to articulate a reasoned basis for the rule.
  • The FTC’s cost-benefit analysis was arbitrary and capricious.

The decision highlights the Fifth Circuit’s hostility to the “Administrative State” and the two different rulemaking schemes under which the FTC operates.

Continue Reading The Fifth Circuit Slams the Brakes and Vacates FTC CARS Rule

New year, new Tool Kit! The 13th edition of Venable’s popular Advertising Law Tool Kit is now available for download. This annual resource compiles a broad spectrum of marketing-related topics, background information, and checklists into an easy-to-access guide, authored by some of the most experienced attorneys in the industry. New sections examine issues related to email marketing, charitable fundraising, and the National Advertising Division.

Download this year’s Tool Kit or bookmark the link to our e-book for quick access to these industry best practices.

If you have specific questions after reading any of the Tool Kit‘s 43 helpful chapters, don’t hesitate to contact our authors to arrange a conversation or to suggest a topic for future editions.

We also invite you check out Season 2 of the Ad Law Tool Kit Show, our podcast that examines the increasingly complex regulatory landscape, and secure your seat for Venable’s 11th Advertising Law Symposium on March 20 in Washington, DC. Finally, if you haven’t already, be sure to subscribe to our award-winning blog.

With the Biden-Harris administration and Federal Trade Commission (FTC) Chair Lina Khan tenures now completed, we take a look back at the mountain of rulemaking carried out over the last few years. Khan’s ambitious agenda led to an avalanche of new and amended rules. All eyes will now be on Commissioner Andrew Ferguson, who is set to become the new chair, and how he will steer the agency going forward.

Under Khan’s leadership, the FTC issued major rules that attempted to regulate swaths of the U.S. economy. Some rules failed to become effective, as they faced judicial setbacks, such as the Non-Compete Rule, which was set aside by a federal court and the CARS Rule that the FTC stayed after litigation commenced. Similarly, the Negative Option Rule is in the midst of a court challenge that may halt its implementation. Meanwhile, the Unfair or Deceptive Fees Rule was substantially narrowed during the rulemaking process.

Continue Reading Welcome to the New Federal Trade Commission! But First, a Look Back at FTC Rulemaking