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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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Advertising, Marketing & Promotions Alert >> FTC Updates Answers to Frequently Asked Questions About Endorsement Guides  - Alert - 06/04/2015

Marketers and their agencies should remember that the fundamental requirement of the updated FAQs remains the same: when someone receives something of value in exchange for marketing or reviewing a product, a disclosure is necessary. Disclosures should be made clearly and conspicuously, and should be tailored to the user experience of respective social media platforms. Marketers should also make reasonable efforts to monitor and train those that make statements on their behalf, including influencers, public relations agencies, and employees.

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Law360.com: Mobile Technology Under The FTC Spotlight - Published Article - 05/08/2015

By Joseph J. Lewczak and Justin H. Lee

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Advertising, Marketing & Promotions Alert >> ABA Committees Recommend Widespread Changes to NAD Procedures and Practices - Alert - 04/21/2015

The success of the NAD relies on the voluntary cooperation of its many stakeholders. Thus, the industry will need to carefully review the report and its recommendations. Likewise, the NAD will have to consider whether implementing any of the recommendations will create more or less demand, or more or less voluntary cooperation. The NAD is too important an institution to make a mistake. The NAD and its stakeholders need to proceed cautiously or the repercussions could be severe.

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cmo.com: The Future of Advertising Self-Regulation - Published Article - 04/21/2015

Ronald R. Urbach

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Advertising, Marketing & Promotions Alert >> Court Finds Affiliate Marketing Network Responsible for False Claims Made by Its Affiliates - Alert - 04/20/2015

The court’s decision makes it clear that affiliate networks can be held responsible for the acts of their affiliates even if they do not create the content used by the affiliates. Accordingly, affiliate networks should consider consulting with counsel to implement best practices to try to limit their potential liability for affiliates’ actions under the FTC Act.

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Advertising, Marketing & Promotions Alert >> U.S. Court of Appeals for the Ninth Circuit Confirms that Netflix Is Not Subject to the ADA - Alert - 04/20/2015

The Cullen ruling confirms that, at least in the Ninth Circuit (which covers California and other Western states, plus Alaska and Hawaii), online companies that are “not connected to any actual, physical place” are not subject to the ADA, or to state laws modeled or based on the ADA. Online companies such as Netflix simply are not a “place of public accommodation” within the meaning of the ADA. This ruling is consistent with other decisions on the ADA which would seem to require a brick and mortar “nexus” to an online presence in order for the ADA to apply to the online component.

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Advertising, Marketing & Promotions Alert >> Automobile Shipment Broker Settles with FTC Over Charges that It Misrepresented Online Customer Reviews - Alert - 03/30/2015

State and federal regulators continue to scrutinize online reviews to ensure that customers are receiving authentic and transparent reviews of products and services prior to purchasing them. The AmeriFreight settlement should serve as a reminder to advertisers that all endorsers – whether these endorsers are bloggers, celebrities, or customers – must disclose their material connections with advertisers in accordance with the FTC’s Endorsement and Testimonial Guidelines.

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ANOKHI Magazine // The Ascent of Fashion Law - Press Mention - 03/12/2015

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Employee Relations Law Journal: Section 409A Issues in Employment Contracts - Published Article - 02/19/2015

by Mark E. Bokert and Alan Hahn

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Advertising, Marketing & Promotions Alert >> NAD Recommends Changes to Online Travel Agency’s Search Engine Marketing Claims - Alert - 02/12/2015

The NAD’s decision is a reminder to advertisers and agencies that SEM advertising campaigns, as with other advertising, should avoid the potential for consumer confusion, or risk being challenged by competitors or others. Given the FTC’s continued focus on clear and conspicuous online disclosures, when a reasonable interpretation of a specific SEM advertising claim can be found to be misleading, the advertiser may have crossed the line.

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Advertising Age: Why We All Need to Worry About Children's Privacy - Published Article - 01/07/2015

by Allison Fitzpatrick



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