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Advertising, Marketing & Promotions Alert >> FDA Issues Menu-Labeling Guide for Restaurants - Alert - 05/17/2016

Restaurants, retailers and companies that own retail establishments have been living with the FDA’s rule requiring the listing of calorie information on menus and menu boards for almost two years. They now face a substantial expansion of menu listing requirements that not only address what information must be posted but also regulate where it would have to appear. The extent to which the new requirements are manageable will depend in large part on how the FDA responds to comments on the guide, which it is welcoming. Davis & Gilbert is available to prepare and deliver comments to the FDA on clients’ behalf.

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Advertising, Marketing & Promotions Alert >> SAG-AFTRA Renegotiates Commercials Contract - Alert - 05/12/2016

The newly renegotiated SAG-AFTRA Commercials Contract increases talent rates overall, but also addresses in some fashion the concerns of signatory advertising agencies and advertisers that they are at a competitive disadvantage when paying SAG-AFTRA Commercials Contract rates to talent for digital content work and to “real” people in non-scripted commercials. That the 2016 Memorandum of Agreement also clarifies and tightens up a key aspect of the definition of a “commercial” for digital use may, however, telegraph concern by SAG-AFTRA that signatory agencies and advertisers will continue to strive to find ways to produce those “commercials” in a manner or format that is not covered under the SAG-AFTRA Commercials Contract. It also suggests that more work may need to be done by both the JPC and SAG-AFTRA in arriving at a talent payment model that adequately reflects the increased demand from marketers for digital content, which shows no signs of slowing down.

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Advertising, Marketing & Promotions Alert >> Amazon Found Liable for Billing Parents for Children’s Unauthorized In-App Charges - Alert - 05/04/2016

The court’s decision should serve as a reminder of the importance of ensuring clear and conspicuous disclosure of billing practices, particularly when the charges are incurred by children, and the importance of ensuring appropriate parental controls of in-app purchases directed to children. The FTC will continue to protect against the unauthorized billing of parents for in-app purchases made by their children, particularly now that a federal court has agreed that such conduct constitutes an unfair practice in violation of the law.

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Advertising, Marketing & Promotions Alert >> 'All Natural' Claims Challenged by FTC; Four Companies Settle and One Is Charged - Alert - 05/02/2016

While these actions represent the first settlements by the FTC in a controversial area of the law, it is clear that the agency views "all natural" and "100% natural" claims as meaning that products have no artificial ingredients or chemicals. The FTC's charges and proposed settlements in these cases should serve as a reminder to advertisers about the need for care when making "all natural" claims.

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Advertising, Marketing & Promotions Alert >> FTC Brings First Action Alleging Deceptive Native Advertising Practices - Alert - 03/21/2016

Expect the FTC to continue to enforce the principles of transparency, monitoring and enforcement as they apply to both native advertising and endorsement relationships going forward. While the FTC has stated in the past that advertisers, publishers and marketing partners are all responsible for ensuring compliance, in this case, the FTC specifically targeted the advertiser responsible for orchestrating the campaign and managing contractual relationships with publishers and spokespeople.

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PR News // The Natives Get Wrestled - Press Mention - 03/21/2016

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PR News // No Love - Press Mention - 03/14/2016

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Advertising, Marketing & Promotions Alert >> Alleging Misleading "Made in USA" Claims, FTC Sues Glue Manufacturer - Alert - 02/23/2016

This latest action by the FTC is on the forefront of a recent trend by both regulators and private parties attacking "Made in USA" claims, and we expect this trend to continue. Given this renewed attention and increased practical risk, it’s critical that companies promoting products as "Made in the USA" or with similar statements ensure that they comply with FTC rules, as well as any applicable state rules (to see a previous D&G Alert on "Made in USA" claims, click here). Qualified U.S. origin claims, such as "Made in USA of U.S. and imported parts" or "60% U.S. content," also must comply with applicable legal requirements.

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Advertising, Marketing & Promotions Alert >> New York Ethics Commission’s Proposed Regulation Draws Fire From Public Relations Firms - Alert - 02/09/2016

The New York Joint Commission on Public Ethics’ recent Advisory Opinion expands the definition of lobbyist to include public relations consultants. In the process, it triggers onerous registration and reporting requirements for core public relations activities, such as acting as a spokesperson, pitching editorials, or editing press releases.

These rules, however, have been the subject of much controversy and criticism, and are likely to be challenged on First Amendment grounds. The industry, therefore, appears to be adopting a wait-and-see approach to these regulations.

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Advertising, Marketing & Promotions Alert >> NYC Marathon Organizer Sued Over Alleged Illegal Lottery - Alert - 01/25/2016

Many industries have similar systems for selecting those who can purchase a ticket or participate in an event, and even without a fee to participate, the New York Road Runners lawsuit raises the question as to whether or not these lotteries should be treated and legally analyzed as sweepstakes. The lawsuit against the New York Road Runners demonstrates that lottery and sweepstakes laws should be taken into account in structuring distribution of anything of value based on chance. As noted in the Alert, the suit is not the first to challenge this type of entry process, and it likely will not be the last one.

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Advertising, Marketing & Promotions Alert >> FTC Announces COPPA Actions Against App Developers - Alert - 01/12/2016

Due to the likelihood of increased FTC enforcement, operators of child-directed apps and websites should be reviewing their privacy practices to ensure that they are in compliance with COPPA and are not behaviorally targeting children in violation of COPPA. We anticipate that the FTC will bring further actions throughout the year against apps and web sites that allow advertisers to collect persistent identities to behaviorally target children without parental consent.

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Advertising, Marketing & Promotions Alert >> Three Recent Developments in Native Advertising from the FTC, MMA & OBA - Alert - 01/04/2016

As native advertising continues to grow in importance, we will likely continue to see both more self regulatory guidance including possible further clarifications based on the recent FTC guidance, more self regulatory enforcement by organizations such as the NAD and OVA, and likely enforcement actions by the FTC where advertising or marketing communication agencies, brands, or publishers fail to clearly and conspicuously disclose that native advertising is in fact advertising.

Best practices include separating native advertising from editorial content in a manner that clearly distinguishes each (with reference to the specific examples and practices recommended by the FTC), clearly disclosing and ensuring your partners are disclosing native advertising as paid advertising or sponsored content, and, as, the recent OBA enforcement cases provide, ensuring that proper notices and opt-out mechanisms are included from a privacy perspective when targeting consumers with native ads.

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MediaPost: Blurred Lines No More: The Regulators Are Going Native In 2016 - Published Article - 12/31/2015

by Vejay G. Lalla and Paavana L. Kumar

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law360.com: Expect Lawsuits Against Ad Blockers - Published Article - 11/13/2015

by Richard S. Eisert; Truan Savage

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Advertising, Marketing & Promotions Alert >> Thinking About Starting a Subscription-Based App or Business? Do it Right to Avoid Legal Risk  - Alert - 10/19/2015

Subscription-based business models are booming, and are a likely source of new businesses looking for a steady stream of income. However, if not done right, businesses could be exposed to significant legal risks. It’s critical, therefore, for businesses that offer auto renewals to review the laws and requirements with their outside counsel. Doing so can help to ensure that they adopt and follow best practices, lower the risks of litigation or regulatory action, and are ultimately successful.



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