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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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Advertising, Marketing & Promotions Alert >> "Made in U.S.A." Bill is Signed into Law in California - Alert - 10/19/2015

Manufacturers should welcome the change to the 100 percent “Made in U.S.A.” standard that had previously existed in California – an anomaly as compared to other states. The newly revised law will allow companies making “Made in U.S.A.” claims the ability to distribute one universal message, without having to make an exception for California. While “Made in U.S.A.” claims don’t typically receive much regulatory scrutiny, these laws are enforced from time to time and need to be taken seriously for any marketing campaigns including a “Made in” message.

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Digital Media, Technology & Privacy Alert >> EU Court of Justice Strikes Down U.S.-EU Safe Harbor for Data Sharing  - Alert - 10/07/2015

Companies that transfer personal data from the EU to the U.S. must now consult with counsel to consider the effect of the Court of Justice’s decision on their business practices and whether they should rely on alternatives to the Safe Harbor, including model contract clauses, binding corporate rules and direct consent to permit them to continue transferring personal data to the United States.

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Corporate Counsel: How to Avoid Run-Ins With State AGs, the New Cops on the Block - Published Article - 09/24/2015

Ronald R. Urbach and Matthew E. Smith

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Advertising, Marketing & Promotions Alert >> New York Attorney General Is Latest Regulator to Challenge the Auto Industry - Alert - 09/17/2015

Regulators have clearly put the automobile industry on notice about the need for clear and conspicuous disclosure of material terms in their marketing materials and sales documents. The industry should brace for more regulatory attention, with potentially very significant penalties, while considering what steps to take to protect against future regulatory actions. In particular, auto dealers should ensure they are clearly disclosing and communicating components of a lease agreement or sales contract, the price of a vehicle, and the material terms of any after-sale product or service.

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Advertising, Marketing & Promotions Alert >> Consumer’s California Lawsuit Challenges Department Stores’ “Compare At” Pricing - Alert - 07/20/2015

Although the suit against Ross Stores is in its infancy, it is a good reminder to retailers in California – and across the country – to be familiar with and to abide by the Federal Trade Commission’s “Guides Against Deceptive Pricing” and other state laws containing different or more stringent requirements. Many of these laws prohibit fictitious price comparisons, such as comparisons against a manufacturer’s suggested retail price (MSRP) competitive prices that don’t actually exist. This new case against Ross Stores continues the trend of class actions and regulatory investigations against misleading pricing practices in the retail industry, heightening the practical risk for engaging in these practices.

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PRNews: How To Make Sure Visual Storytelling Stays Within the Law - Published Article - 07/20/2015

by Joseph J. Lewczak

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Advertising, Marketing & Promotions Alert >> Upcoming FCC Rulings Will Create New Challenges for TCPA Compliance - Alert - 07/07/2015

The exact details of the FCC’s decisions concerning the TCPA will become clearer once the final rulings are released. However, from the FCC’s announcement it is evident that the rulings will make TCPA compliance even harder for telemarketers and other businesses that are using autodialers and text messages to reach consumers. Unfortunately, it appears that the rulings could lead to an increase in TCPA lawsuits. It is thus even more important now than ever for telemarketers and other businesses affected by the TCPA and subject to the Do-Not-Call Registry to begin adapting their practices to the FCC’s new rules as soon as possible.

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Advertising, Marketing & Promotions Alert >> What Agencies and Their Advertisers Need To Know About Endorsement Agreements Prior to Engaging Talent - Alert - 06/11/2015

Prior to hiring celebrities, musical artists, and other personalities to endorse products and perform services, advertisers and their agencies should consider what type of talent contract should be utilized – and the impact of that document – to ensure that all expectations are met.

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Advertising, Marketing & Promotions Alert >> Collection Practices of Customer Data By California Retailers Brought to CA Supreme Court - Alert - 06/10/2015

Whether the California Supreme Court will agree to decide the certified question remains to be seen. If it does agree to decide, a ruling likely would not be issued for a year or longer. Nonetheless, the early warning bells now are ringing for retailers.



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