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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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Advertising, Marketing & Promotions Alert >> False Advertising & Deceptive Marketing Practices: Trends in Litigation and Governmental Enforcement Actions - Alert - 05/21/2014

As an increasing number of claims are filed against companies in the fashion and cosmetics industries based on false advertising and deceptive marketing, companies should ensure that they have adequate substantiation for all claims made prior to making these claims, that their environmental claims are specific and properly substantiated, and that their use of technology (including Photoshop) in the context of a product demonstration is disclosed and does not create misleading impressions of the functionality of their products.

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Advertising, Marketing & Promotions Alert >> Branded Entertainment, Product Placement and Viral Technology - Alert - 05/21/2014

When working on branded entertainment deals, legal counsel should be aware of key legal provisions such as exclusivity, creative control and termination rights, as well as regulatory concerns, as they balance these issues against the business demands.

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Advertising, Marketing & Promotions Alert >> Mobile Marketing: Legal Issues that Arise for Retailers and Merchandising Companies - Alert - 05/21/2014

While mobile technologies continue to change, creative counsel should work with business teams to assess the application of “traditional media” laws to new areas, and to do so in a way that manages brand image as well as legal risk.

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Advertising, Marketing & Promotions Alert >> Minors’ Suit Against Facebook is Dismissed as California Federal Court Upholds Facebook’s Terms & Conditions - Alert - 05/01/2014

The court’s decision is significant as it found that minors had consented to, and were bound by, Facebook’s SSRs. The California Attorney General and other regulators – as well as the class representatives themselves – may seek to reverse this decision in the name of protecting children. However, as minors are increasingly entering into direct relationships with companies for goods and services, greater certainty over what terms will govern that relationship would be welcome by many. Regardless, it is important to note that the California ruling was based solely on a California law and that the applicability of its reasoning in other states, and by other courts, remains to be seen.

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Advertising, Marketing & Promotions Alert >> Contest Entrants’ Pins Raise FTC Endorsement Concerns - Alert - 05/01/2014

The FTC’s guidance makes it clear that that pinning may constitute an endorsement of a company or its products, and entry into a sweepstakes or contest may constitute a material connection that is required to be disclosed under the FTC Endorsement Guides. Before running any social media promotion, companies should check the social media platform’s terms and conditions, and should ensure their bloggers, influencers, spokespeople, and even promotion entrants are disclosing their material connections and institute reasonable monitoring programs to ensure compliance.

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Advertising, Marketing & Promotions Alert >> A Dozen Auto Dealers Settle FTC’s Deceptive Advertising Charges - Alert - 04/29/2014

The FTC is not alone in its focus on automobile dealership advertising practices. New York prosecutors recently reached settlements with six auto dealers that allegedly engaged in deceptive and misleading advertising practices under the state’s advertising guidelines for auto dealers, including by using footnotes or asterisks that “contradict[ed], confuse[d] or materially modif[ied] a principal message of an ad” and by using a print size “so small as to not be easily readable.”  While the FTC focused on dealers this time around, a closer look at automobile manufacturing advertising may not be far behind.  It may be time for both dealers and manufacturers to take their ads in for an advertising law tune-up.

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Advertising, Marketing & Promotions Alert >> H&R Block’s Website Accessibility Settlement Suggests How to Become ADA-Compliant - Alert - 03/25/2014

Website accessibility under the ADA is an issue of ongoing concern, with companies not clearly understanding whether they need to comply and if so, how to do so. Indeed, it’s not clear whether ADA compliance applies to all websites, or only certain types of websites.  The H&R Block settlement may finally provide a starting point for a roadmap. Further information on the ADA’s application to websites will be available when the DOJ issues guidance on the subject, expected in April. 

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PRNews: Monitoring Social Media: New Regulations Aim to Cut Down on Fake Reviews - Published Article - 03/20/2014

by Allison Fitzpatrick

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Law360.com: Dumb Starbucks: Grande Parody or Trademark Infringement? - Published Article - 03/20/2014

by Brooke Erdos Singer and Joy J. Wildes

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Advertising, Marketing & Promotions Alert >> YouTube’s Royalty-Free Audio Library Sounds Good. But, Agencies Beware - Alert - 03/17/2014

Agencies should proceed with caution before utilizing the free YouTube audio library. It is important to evaluate how the music will be used, and to make a risk assessment that considers other alternatives to this service.

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Advertising, Marketing & Promotions Alert >> ADT Settles FTC Charges that Endorsements Deceived Consumers - Alert - 03/17/2014

The FTC’s settlement with ADT reminds advertisers to inform endorsers about their responsibilities to clearly and prominently disclose their material connection, to monitor their endorser’s compliance, and to terminate those endorsers who fail to make these required disclosures. To the extent advertisers are not doing so already, they should take steps to monitor their paid endorsers to help to ensure that they are complying with the FTC’s Guides Concerning Use of Endorsements and Testimonials in Advertising. Advertisers must consider adding to their endorser’s contract, if they have not already done so, the endorser’s obligation to make the necessary disclosures and that the failure to do so may result in termination of the contract.

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Advertising, Marketing & Promotions Alert >> Colorado’s Retail Marijuana Regulations Cover Advertising, Labeling, and Packaging  - Alert - 03/11/2014

It’s no surprise that licensed retail marijuana sellers in Colorado have joined the ranks of other highly regulated “sin” industries such as alcohol and tobacco. These regulations are designed to ensure – among other things – that the products aren’t marketed to those who aren’t supposed to partake and that the sellers aren’t making claims that are unfounded.  While this industry is still young and likely to expand, sellers, their agents and media companies should take note that actions to enforce the regulations won’t be far behind. 

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Advertising, Marketing & Promotions Alert >> Gambling with New Jersey’s Casino Advertising Rules: A Bad Bet - Alert - 03/11/2014

New Jersey casino licensees or applicants who seek to advertise should be familiar with the rules and regulations governing their ads. Avoiding potential legal issues with their advertising can allow licensees and applicants to focus on their own businesses and their customers. 

 

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Advertising, Marketing & Promotions Alert >> Michael Jordan Scores on Appeal in Lawsuit over Congratulatory Ad - Alert - 03/06/2014

The Court’s decision serves as a cautionary reminder that advertisers should be careful about running congratulatory advertisements featuring famous individuals that also promote their own brand or products.  Prior to running congratulatory ads, advertisers and agencies should consult with legal counsel to avoid potential risks and ensure compliance with all relevant laws. 

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Advertising, Marketing & Promotions Alert >> Members Of Congress Seek FTC Investigation Into Marketing Practices of Outlet Stores - Alert - 02/25/2014

It appears that pricing issues, and comparative price advertising, is getting a renewed legal focus, in light of the letter to the FTC and other recent court cases focusing on these issues. Now is a good time for businesses with any retail stores, especially including outlet stores, to examine their pricing and marketing practices to ensure they are compliant with the FTC’s Guides Against Deceptive Pricing and local price advertising regulations.  

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InsideCounsel: Pension & Health Allocations Under the SAG-AFTRA Commercials - Published Article - 02/24/2014

by Howard Weingrad

Considering allocation amounts given when covered services are not primary.

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Advertising, Marketing & Promotions Alert >> Children’s Advertising Update: CARU Year In Review - Alert - 02/12/2014

This past year, CARU’s inquiries were particularly focused on advertisements involving safety issues, inadequate disclosures, sweepstakes and contests, and online privacy protection.  CARU’s focus in these areas may suggest heightened scrutiny throughout 2014 as well (particularly with respect to online privacy protection, in light of the COPPA changes).  As such, children’s advertisers should pay particular attention to the outlined sections above when engaging in any marketing directed to children. 

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InsideCounsel: Making Pension & Health Plan Payments Under the SAG-AFTRA Commercials Contract - Published Article - 02/10/2014

by Howard R. Weingrad

The Allocation Guidelines established safe harbor contribution "allocations" for various services performed by talent.



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