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

Since July 1, when California’s “Honest Pricing Law” or “Hidden Fees Statute” became effective, the plaintiffs’ bar has filed more than a dozen complaints alleging violations of the statute. These complaints challenge alleged “junk fees” or “drip pricing” structures, including “service fees” charged by merchants through their websites, “processing fees” charged by third-party platforms, and various forms of credit card surcharges and debit card fees.

Background

California’s Honest Pricing Law requires “Total Price” disclosures and prohibits merchants from misrepresenting the nature and purpose of any charges or fees. Under the statute, “Total Price” means that the advertised prices of goods and services must include all mandatory charges and fees other than either government-imposed taxes or fees or postage or carriage charges “reasonably or actually incurred” to ship the physical good to the consumer.

Continue Reading A Variety of Fees and Surcharges Implicated in Early Cases Enforcing California’s Honest Pricing Law

The first episode of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Negative Option Marketing: Part 2” here, or search for it in your favorite podcast player.

Negative option marketing can include pre-notification negative option plans, continuity programs, automatic renewals, and free-to-pay conversions. This marketing strategy continues to invite scrutiny from the Federal Trade Commission (FTC), state attorneys general, and class action plaintiffs.

In this episode, I talk to my co-host on this podcast, Shahin Rothermel, and
Venable partner Ari Rothman about the keys to success in avoiding investigations and liability.

Continue Reading Listen to Venable’s Ad Law Tool Kit Show Podcast– “Negative Option Marketing: Part 2”

We are excited to announce Season 2 of Venable’s Ad Law Tool Kit Show, the podcast that helps you and your organization identify and avoid potentially problematic advertising practices.

As they did in Season 1, Shahin O. Rothermel and Leonard L. Gordon will interview their Venable colleagues and examine the increasingly complex regulatory landscape that governs the promotion of goods and services—from Made in USA claims to marketing to children.

Each week, the podcast brings the firm’s popular Advertising Law Tool Kitto life through the lens of current events. Listen to the trailer here. Episode 1, “Negative Option and Continuity Marketing: Part II,” will be available on Tuesday, October 1. In the first episode of the season, Len talks to Shahin and Venable partner Ari Rothman. Join us over the coming weeks to hear:

Continue Reading Listen to Season 2 of the Ad Law Tool Kit Show

This week, California amended its automatic renewal and continuous service offer law (ARL). Key provisions include the addition of “free-to-pay conversions,” consent obligations, misrepresentation prohibitions, request for cancellation procedures, price change notifications, and reminder and recordkeeping requirements. The new law takes effect July 1, 2025.

Express Affirmative Consent Required

The law will require “express affirmative consent” for all automatic renewal and continuous service offers. While the ARL provides no definition, class action plaintiffs’ attorneys, the California attorney general (AG), and California’s Automatic Renewal Taskforce (CART) are likely to interpret it similarly to the Federal Trade Commission’s (FTC) definition of “affirmative express consent,” i.e., “freely given, specific, informed, and unambiguous indication of an individual consumer’s wishes demonstrating agreement by the individual, such as by an affirmative action, following a clear and conspicuous disclosure to the individual.”

Continue Reading California Amends Autorenewal Law, with Stricter Consent Requirements and a “One Save” Rule: Fast VAST Update

The Federal Trade Commission (FTC) announced a “sweep” targeting AI-related conduct this week. The cases provide insight into how the agency may approach AI-related issues going forward and illustrate differences among the agency’s commissioners in how to approach issues raised by AI.

Three of the cases involved marketers making false earnings and business opportunity claims promising buyers income from AI-generated ecommerce locations. The FTC’s approach here was straightforward and consistent with how it has approached other money-making claims. Not surprisingly, both cases were voted out 5-0, and the FTC has obtained asset freezes against the companies and some principals.

The other cases were more novel and highlighted some of the challenges raised by AI.

Continue Reading As FTC Begins Grappling with AI Issues, “Sweep” Signals Differing Approaches Among Commissioners

Not to be left behind by other regulators, the California Privacy Protection Agency (CPPA) recently issued an enforcement advisory on “dark patterns” in the context of the notice and consent required under the California Consumer Privacy Act (CCPA). As we’ve previously discussed, dark patterns are a subset of “deceptive marketing” and are also known as “deceptive design patterns.” The Federal Trade Commission (FTC) released a report in 2022 outlining the various methods companies employ, such as “making it difficult for consumers to cancel subscriptions or charges, burying key terms or junk fees, and tricking consumers into sharing their data.”

The scrutiny of dark patterns has only intensified since then, and states like California are jumping in. The CCPA defines dark patterns as “[u]ser interfaces or choice architectures that have the substantial effect of subverting or impairing a consumer’s autonomy, decision making, or choice” and says consumer agreement obtained through dark patterns does not constitute consent. The CPPA advises companies seeking to obtain consumer information to use language that is easy to understand and to avoid technical or legal jargon.

Continue Reading California Privacy Protection Agency Warns Businesses Against “Dark Patterns” and Urges “Symmetry in Choice”

Last month, the Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) jointly hosted a public meeting of the interagency “Strike Force on Unfair and Illegal Business Practices.” The meeting was a continuation of an effort, initially announced by President Biden in March, to “strengthen interagency efforts to root out and stop illegal corporate behavior that hikes prices on American families through anti-competitive, unfair, deceptive, or fraudulent business practices,” according to a press release.

The August 1 meeting brought together a number of different agencies to discuss their actions to lower prices for Americans, including the FTC and the DOJ, the Consumer Financial Protection Bureau (CFPB), the U.S. Department of Transportation, the U.S. Department of Agriculture (USDA), the U.S. Department of Health and Human Services (HHS), the U.S. Securities and Exchange Commission (SEC), and the U.S. Federal Communications Commission (FCC).

Continue Reading Federal Agencies Increase Focus on Pricing Enforcement