Episode 2 of the Ad Law Tool Kit Show, “Marketing FDA-Regulated Products,” is now available. Listen here, or search for it in your favorite podcast player.

The Federal Drug Administration (FDA) regulates the marketing of a lot of things we use every day—dietary supplements, cosmetics, and medical devices. But their regulatory classification isn’t always clear, leading to confusion for marketers.

In this episode, I talk to Venable partner Todd Harrison about how marketers need to understand such regulations to avoid trouble, considering aspects like claims aligning with regulations, social media impact, and necessary FDA clearance for medical devices.

Continue Reading Listen to Episode 2 of Venable’s <em>Ad Law Tool Kit Show</em>—“Marketing FDA-Regulated Products”

As we anxiously await the Federal Trade Commission’s (FTC) update of the Green Guides, advertisers should keep in mind the various “green” state laws that could affect the production and marketing of certain products. For example

Voluntary Carbon Market Disclosures Act (VCMDA)

The VCMDA is a new California law that imposes disclosure requirements on public and private companies of all sizes that:

  • Operate in California and/or make claims in California regarding their climate performance, including claims regarding the achievement of net zero emissions, that the entity (or its product) is carbon neutral and/or does not add net carbon dioxide or greenhouse gas (GHG) emissions, that the entity has made “significant reductions” to its GHG emissions, or similar claims
  • Operate in California and/or make climate-performance claims in California and use or purchase voluntary carbon offsets (VCOs) sold in California
  • Market or sell VCOs in California (regardless of whether they make climate-performance claims)
Continue Reading Making Green Claims? Keep in Mind New State Laws

Join us over the next few months 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, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of product safety and recalls in this week’s episode

On rare occasions, notwithstanding the best of engineering design and testing, a consumer product contains a manufacturing or design defect, or a failure of adequate instructions, that results in its being unsafe for use and a potential for causing bodily harm. This most often reveals itself when consumers bring the matter to the attention of a manufacturer, retailer, or direct-response marketer, or upon receipt of a notice from the Consumer Product Safety Commission (CPSC).

Continue Reading Product Safety and Recalls: An Excerpt from the Advertising Law Tool Kit

It’s that time of year again. Regardless of what you call them—subscriptions, negative option programs, automatic renewals, or continuous service offers—states are continuing to enact and enforce new laws with increasingly strict requirements. Many new requirements have come into play since last year, so if you haven’t conducted a checkup recently, now is a great time.

Continue Reading Your 2024 Outlook: California’s Enforcement Trends and New State Laws Governing Automatic Renewal Programs

Tractor maker Kubota North America Corporation will pay a $2 million civil penalty for falsely labeling its replacement parts as “Made in USA,” the largest civil penalty ever in a Federal Trade Commission (FTC) Made in USA case.

In its complaint, released last week, the FTC alleges that since at least 2021, Kubota has labeled thousands of replacement parts as Made in USA when, in fact, they were wholly imported. After shifting production of some of its products overseas, the company failed to update its package designs that included the Made in USA labels, resulting in the sale of millions of replacement parts with the false label.  Making matters worse, at least in the FTC’s eyes, Kubota was previously sued by the FTC in 1999 for falsely claiming that a line of lawn tractors it manufactured was Made in USA and was subject to an FTC order in that case that expired in 2019. 

Continue Reading FTC Issues Record-Breaking Civil Penalty in “Made in USA” Case

Episode 1 of the Ad Law Tool Kit Show, “Product Safety and Recalls,” is now available. Listen here, or search for it in your favorite podcast player.

It doesn’t happen a lot, but every so often a consumer product can be revealed to be unsafe. When that happens, it can bring up questions about a company’s obligations regarding the related products.

I talk to Venable partners Erin Maus and Melissa Steinman about how U.S. law requires manufacturers, retailers, and marketers to report unsafe products to the Consumer Product Safety Commission (CPSC). Compliance involves monitoring complaints, reviews, and databases. Failing to report promptly incurs penalties, while voluntary recalls might prompt false advertising lawsuits.

Venable’s Ad Law Tool Kit Show will help you and your organization identify and avoid potentially problematic advertising practices. Over the course of 12 episodes, we examine the increasingly complex regulatory landscape that governs the promotion of goods and services—from negative option marketing to copyright protection and influencer endorsements.

If you have specific questions after listening to this episode, don’t hesitate to contact me, Erin, or Melissa to arrange a conversation. And check out more chapters of Venable’s Advertising Law Tool Kit.

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. Tune in next week for a conversation between Shahin Rothermel and Venable partner Todd Harrison on “Marketing FDA-Regulated Products.”

Today we’re excited to announce the launch of Venable’s Ad Law Tool Kit Show, a podcast that will help you and your organization identify and avoid potentially problematic advertising practices.

As hosts of the 12-episode show, we’ll interview our fellow Venable colleagues and examine the increasingly complex regulatory landscape that governs the promotion of goods and services—from negative option marketing to copyright protection and influencer endorsements.

Each week, we’ll bring the firm’s popular Advertising Law Tool Kit to life through the lens of current events. Listen to the trailer here.

Episode 1, “Product Safety and Recalls,” with Melissa Steinman and Erin Maus, will be available Tuesday, January 30. Join us over the coming weeks to hear:

Continue Reading Listen to the Ad Law Tool Kit Show – a New Podcast from Venable

Earlier this week, the Federal Trade Commission (FTC) held its informal hearing on the proposed amendments to the Negative Option Rule. Clearly on display was not only industries’ concern about the impact of the proposed rule, but also concern about the FTC’s haste toward implementing the rule changes.

As a refresher, the FTC generally must promulgate rules under the Magnuson-Moss Warranty Federal Trade Commission Improvements Act (Mag-Moss) instead of the less-stringent Administrative Procedures Act. Under Mag-Moss, the FTC must first issue an advanced notice of proposed rulemaking (ANPR) seeking public comment, issue a notice of proposed rulemaking (NPRM), have reason to believe that the conduct at issue is “prevalent,” conduct informal hearings allowing parties to present their views and finally publish the final rule with a “statement of basis and purpose” accompanying the rule.

Continue Reading Unpacking the FTC’s Negative Option Rule Informal Hearing

Telemarketers celebrating the new year should be aware of Maryland’s new telemarketing law, Stop the Spam Calls Act, which took effect January 1, 2024. Like the federal Telephone Consumer Protection Act (TCPA), Maryland now prohibits telephone solicitations (i.e., marketing calls and texts) without the prior express written consent of the called party. But unlike the TCPA, which prohibits the use of an “autodialer” or “ATDS,” the Maryland Act prohibits the use of an “automated system.”

What constitutes an autodialer has been thoroughly litigated up to the U.S. Supreme Court. There, the justices decided that an autodialer is a device that “must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.”

Continue Reading Maryland Rings in the New Year with an Expanded Telemarketing Law

This week, the Federal Trade Commission (FTC) announced a Proposed Stipulated Order with lead generator Response Tree LLC and its president, resolving allegations that the company violated the Telemarketing Sales Rule (TSR) and Section 5 of the FTC Act. The complaint alleged that the company operated “consent farm” websites that misled consumers into providing their telephone numbers, falsified lead data, and obtained leads without requisite consent, resulting in unlawful prerecorded calls and calls made to telephone numbers on the Do Not Call Registry.

First, the complaint alleges that defendant’s websites duped consumers into providing their telephone numbers by misrepresenting that they were consenting to receive calls about home mortgage financing quotes. According to the complaint, the defendant sold the lead to partners who marketed products or services completely unrelated to home mortgages or lending.

Continue Reading FTC Bans Lead Generator from Participating in Robocalls in $7 Million Settlement