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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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Advertising, Marketing & Promotions Alert >> Facebook Bans “Like-Gated” Promotions, and Marketers May Not “Like” It - Alert - 10/16/2014

“Like-gated” Facebook promotions had their run, but their time has passed for a few compelling reasons. The Facebook policy change is another reminder that companies should know a social media platform’s terms and conditions – and should be aware of changes to those rules – before running a social media promotion.

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Advertising, Marketing & Promotions Alert >> U.S. Supreme Court’s POM Wonderful Decision: Impact on Product Advertisements & Labels  - Alert - 08/07/2014

The Supreme Court’s POM Wonderful decision is a lesson to companies and advertisers who have tried to streamline their vetting process for product advertisements and labels by focusing their efforts only on satisfying federal agencies’ regulations (e.g., FDA, U.S. Department of Agriculture (USDA), Environmental Protection Agency (EPA). The analysis of product labels and advertisements must consider all potential challenges by competitors, consumers, and other governmental agencies.

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Advertising, Marketing & Promotions Alert >> FDA Draft Guidances on Space-Constrained Social Media Marketing, and on Making Online Corrections - Alert - 07/31/2014

Comments on both draft guidances, which further illustrate the FDA’s acceptance of the importance of social media marketing, are due by September 15, 2014. Although neither contains anything particularly new or especially noteworthy, they will provide formal documentation of the FDA’s “current thinking” on both of these subjects once they are finalized.

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Advertising, Marketing & Promotions Alert >> U.S. Department of Justice Opens Review of ASCAP and BMI Consent Decrees - Alert - 07/02/2014

If the DOJ were to recommend changes to the consent decrees – including a groundbreaking elimination of the consent decrees altogether, as ASCAP has suggested, or arbitration of the rates payable to ASCAP and BMI – its proposals would be subject to review by federal judges in New York. A great deal has changed since 1994 and 2001, and it would appear likely that the consent decrees in their current format will be changed, at least to some degree. Just how any changes could affect advertisers and other licensees remains to be seen.

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Advertising, Marketing & Promotions Alert >> Hobby Lobby Settles Allegations It Broke a Deceptive Advertising Commandment - Alert - 07/02/2014

The Hobby Lobby action is a good reminder that, despite intense competition in the retail category, aggressive sale and price comparison advertising can run afoul of the law if pushed too far.  Regulatory actions against these types of advertisements are also becoming more frequent.  Companies should be familiar with, and abide by, any state and local sale and pricing regulations that exist in each state in which its retail stores are located.  

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Advertising, Marketing & Promotions Law >> 2013 Lessons Learned & 2014 Practical Tips - Published Article - 06/30/2014

There were significant changes in almost every aspect of the law relating to advertising, marketing and promotions in 2013. Here, our lawyers explain and discuss what happened, and offer suggestions for advertisers and agencies to think about and address in 2014.



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