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Advertising, Marketing & Promotions Alert >> FDA Proposes to Ease Rules for Pharmaceutical Ads on Social Media - Alert - 01/28/2014

Comments are due on the FDA’s draft guidance within ninety days. Further FDA action on postmarketing submission requirements – and other social media marketing issues – may come this summer when it issues guidance regarding the promotion, using the Internet (including social media), of medical products subject to its jurisdiction, as required by the FDA Safety and Innovation Act. 


Advertising, Marketing & Promotions Alert >> California Court Ruling Rejecting Overstock.com’s ARP Program Presents Challenges for Online Retailers - Alert - 01/27/2014

by Joseph J. Lewczak

A California state court has ruled that Overstock.com’s comparative advertising method is misleading and must be changed. In addition, the court ordered the online retailer to pay $6,819,000 in penalties.


InsideCounsel: Confronting Continuing Ambiguity in the Definition of Internet “Commercials” - Published Article - 01/27/2014

by Howard R. Weingrad

The key inquiries are whether the advertiser’s video content constitutes an advertising message and whether it could run on television as a commercial in its current form


InsideCounsel: Examining the Use of ‘Real People’ Appearing in Digital Commercial Products - Published Article - 01/13/2014

by Howard R. Weingrad

Signatory advertisers and agencies should be encouraged that SAG-AFTRA has recognized the benefit to both sides of allowing “reality” commercial content

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Advertising, Marketing & Promotions Alert >> FDA Issues Warning Letter for Statements Made During Talk Show - Alert -  12/12/2013

By Stuart Lee Friedel and Rohini C. Gokhale

The FDA’s Office of Prescription Drug Promotion (OPDP) recently issued a Warning Letter to Aegerion Pharmaceuticals indicating that statements made by the CEO of Aegerion during the CNBC talk show "Fast Money" promoted the drug Juxtapid for new and unapproved uses, rendering Juxtapid misbranded under the Federal Food Drug and Cosmetic Act. This letter comes almost a year after OPDP issued an Untitled Letter to Cornerstone Therapeutics for failing to include risk information in a media pitch letter.


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Advertising, Marketing & Promotions Alert >> “Do Not Track Kids Act” Reintroduced in Congress - Alert -  12/09/2013

By Gary A. Kibel; Allison Fitzpatrick; Alison Winter

Congress recently introduced the "Do Not Track Kids Act" (the Act), which updates sections of the Children’s Online Privacy Protection Act (COPPA) relating to the online collection, use and disclosure of children’s personal information and establishes new protections for the personal information of children and teens.

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Advertising, Marketing & Promotions Alert >> Reminder: Prior Express Written Consent Now Required for Certain Text Messages and Other Calls Under New TCPA Rules - Alert -  11/19/2013

By Joseph J. Lewczak and Matthew E. Smith

Effective October 2013, the Federal Communications Commission (FCC) revised its rules under the Telephone Consumer Protection Act of 1991 (TCPA) to require “prior express written consent” in order to initiate a telemarketing call or commercial text message to any wireless number using either an autodialer or a prerecorded or artificial voice, and in order to initiate any telephone call to a residential line using a prerecorded or artificial voice, with very limited exceptions. It also made a number of other noteworthy changes to its TCPA rules.

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Advertising, Marketing & Promotions Alert >> “Native” Advertising Grows – and So Does the FTC’s Interest - Alert -  11/19/2013

By Joseph J. Lewczak and Vejay G. Lalla

The Federal Trade Commission (FTC) will be holding a workshop in December on “native” advertising, highlighting its growth – and the growing amount of attention the FTC may potentially give to the subject.


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Advertising, Marketing & Promotions Alert >> European Union Closer to Enacting Stronger Data Protection Rules and Penalties - Alert -  11/05/2013

by Gary A. Kibel; Celia R. Muller

The Civil Liberties, Justice and Home Affairs (LIBE) Committee of the Parliament of the European Union (EU) has approved amendments to the EU’s draft data protection regulations that, if enacted by the Member States, would significantly strengthen the privacy rules and penalties applicable to international companies that control or process personal data of individuals in the EU.


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Advertising, Marketing & Promotions Alert >> New York Attorney General Takes Action Against Fake Online Reviews - Alert -  10/15/2013

By Ronald R. Urbach; Allison Fitzpatrick; Alison Winter

New York Attorney General Eric T. Schneiderman recently announced that 19 companies agreed to cease their practice of writing fake online reviews. These settlements are the result of "Operation Clean Turf," an investigation into the manipulation of consumer-review websites, such as Yelp, Google Local and CitySearch, by the companies that create these fake reviews, as well as the clients that pay for them.

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Advertising, Marketing & Promotions Alert >> California Adopts Minors’ Privacy Law - Alert -  10/09/2013

By Gary A. Kibel; Allison Fitzpatrick

California has become the first state in the country to pass a law requiring operators of commercial websites or online services to give minors the ability to remove their online content. The law, which takes effect on January 1, 2015, also imposes restrictions relating to the online marketing of certain products to minors.

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The Huffington Post: HuffPost Tech: We've Been Duped: The Fake Reviews That Caused You To Dine Here And Buy That - Published Article -  09/26/2013

By: Allison Fitzpatrick and Alison Winter

In an increasingly tech-reliant world, most of us do not step foot in a restaurant or buy anything online without doing at least a modicum of Internet research. And who better to look to before making a reservation or adding a gadget to your shopping cart than other consumers who have dined at that restaurant and used that gadget? Sadly, some of the reviews we relied upon were, in fact, totally fake.

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Advertising, Marketing & Promotions Alert >> Facebook Makes It Easier to Administer Promotions on Its Platform - Alert -  09/17/2013

By: Joseph J. Lewczak and Allison Fitzpatrick

Facebook recently updated its Page terms to make it easier for businesses to create and administer promotions on Facebook. Facebook hopes that these changes will enable more businesses to launch sweepstakes, contests and other promotions on its platform.


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Advertising, Marketing & Promotions Alert >> “Do Not Track” Disclosure Bill Likely to Become Law in California - Alert -  09/11/2013

By: Gary A. Kibel

The California Online Privacy Protection Act (the Act) was enacted in 2004 to little fanfare. It was the first state law to require a website to post a privacy policy, even though doing so was commonly believed to be the best way to comply with applicable federal and state consumer protection laws and a best practice.


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Advertising, Marketing & Promotions Alert >> FDA Issues Final Rule Defining “Gluten-Free” for Food Labeling - Alert -  08/19/2013

By Stuart Lee Friedel and Jennifer B. Soussa

The United States Food and Drug Administration (FDA) has issued its long-awaited final regulation defining the term "gluten-free" for voluntary food labeling. Producers of dietary supplements and food intended for human use will have until August 5, 2014 to comply with this rule.


Perfect Ten: Best Lawyers Honors Ten Davis & Gilbert Partners in the Areas of Advertising, Employment, Litigation, and Real Estate - Press Release - 08/15/2013

Davis & Gilbert is pleased to announce that ten of the firm’s partners have been named to the 2014 edition of The Best Lawyers in America, the oldest and most venerable peer-review publication in the legal profession.

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Advertising, Marketing & Promotions Alert >> Digital Advertising Alliance Offers New Privacy Guidance For Mobile Environment - Alert -  08/01/2013

The core provisions of the Digital Advertising Alliance (DAA) new guidance are not yet in effect and will not be enforced while the mobile industry works on implementation issues, but the “implementation phase” has begun.

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Advertising, Marketing & Promotions Alert >> “Fictitious Sales” Litigation Advances In California - Alert -  07/29/2013

A consumer’s lawsuit against Kohl’s Department Store – which was filed as a class action – alleged that the consumer had purchased several items that were advertised as being substantially reduced from their “original” or “regular” prices but that were, in reality, routinely sold by Kohl’s at the advertised “sale” prices. This lawsuit is moving forward as a result of a recent decision by the U.S. Court of Appeals for the Ninth Circuit. The decision highlights the risk to retailers of advertising or promoting “fictitious sales.”

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Practical Law Company: Trademark Laws: New York - Published Article -  07/15/2013

By: Marc J Rachman and Joy J. Wildes

A Q&A guide to New York laws protecting trademarks. This Q&A addresses state laws governing trademark registration, infringement, dilution, counterfeiting, unfair competition and deceptive trade practices.


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Advertising, Marketing & Promotions Alert >> Entry Fees Now Permitted for Skill-Based Contests in Vermont - Alert -  06/05/2013

By: Joseph J. Lewczak and Allison Fitzpatrick

As of April 26, 2013, sponsors of skill-based contests in Vermont may require an entry fee or other consideration for entry into skill games.

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Advertising, Marketing & Promotions Alert >> FTC Sends Educational Letters to App Developers to Help Prepare for COPPA Changes - Alert -  06/05/2013

By: Allison Fitzpatrick; Alison Winter

In advance of the July 1st effective date of the Federal Trade Commission (FTC) amendments to the Children’s Online Privacy Protection Act (COPPA), the FTC sent more than 90 letters to domestic and foreign app developers in an effort to help them comply with these new requirements. Click here for a previously authored D&G Alert regarding these COPPA amendments.

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Advertising, Marketing & Promotions Alert >> FTC Issues Updated FAQs on Amended COPPA Rule - Alert -  05/07/2013

By: Allison Fitzpatrick and Alison Winter

The Federal Trade Commission (FTC) recently issued updates to its frequently asked questions (FAQs) relating to the FTC’s amendments to the Children’s Online Privacy Protection Act (COPPA), which will take effect on July 1, 2013. Click here for a previously authored D&G Alert on this topic. In response to a request by industry organizations to reconsider the July 1st deadline, the FTC recently decided by unanimous vote to retain the implementation date for the COPPA amendments.


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Advertising, Marketing & Promotions Alert >> Revised Florida Law Limits Promotions and Sweepstakes - Alert -  04/25/2013

By Joseph J. Lewczak; Allison Fitzpatrick

 Florida’s recently revised Game Promotion Law limits the ability of for-profit businesses to conduct sweepstakes for advertising and marketing purposes and prohibits non-profits and charitable organizations from operating any sweepstakes.

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Advertising, Marketing & Promotions Alert >> SEC Confirms Companies May Use Social Media to Announce Material Information - Alert -  04/11/2013

By: Ralph W. Norton; Gary A. Kibel; Allison Fitzpatrick; Joseph A. Sena; Jr.

The Securities and Exchange Commission (SEC) clarifies in a recent report that companies may use social media outlets such as Facebook and Twitter to announce material information in compliance with Regulation FD (Fair Disclosure), so long as investors have been alerted as to which social media channel will be used to disseminate this information.


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The National Law Journal: 2013 Midsize Hot List - Published Article -  04/08/2013

Davis & Gilbert’s business strategy is laser-focused on one industry—advertising. Neither a litigation shop, a mergers and acquisitions specialist nor a regulatory firm, the New York shop provides a full menu of legal services demanded by ad agencies, buyers and media outlets. Matters range broadly from false advertising to copyright infringement to lease negotiations for office space.

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Advertising, Marketing & Promotions Alert >> Business Books and Brand Building Rights and Permissions - Alert -  04/08/2013

By Mary M. Luria

More companies are recognizing the value of creating and publishing, both to the trade book public and to a more limited group of business contacts and prospects, what we view as "books," be they print or electronic.


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PRWeek: Celebrity Behavior Can Be Difficult to Endorse - Published Article -  04/03/2013

By Michael C. Lasky

Marketers and their PR firms typically make sure to include morals and non-disparagement clauses in their celebrity endorsement contracts. Social media has led to an increasing variety of ways celebrity endorsers can commit public acts that may reflect badly on or embarrass a brand. Some recent situations strongly suggest that marketers and their agencies would be wise to review and revise the termination.


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Council of Public Relations Firms: Advertising, Consumers, and the New FTC Disclosure Guidelines - Published Article -  04/01/2013

By Gary A. Kibel

Is your firm up on the latest FTC guidelines governing online advertising and the proper consumer disclosures required by law? It better be.

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Advertising, Marketing & Promotions Alert >> Supreme Court’s Copyright Decision Gives a Boost to Gray Market Retailers - Alert -  04/01/2013

By Brooke Erdos Singer; Joy J. Wildes; Kevin Blum

The United States Supreme Court has ruled in Kirtsaeng v. John Wiley & Sons, Inc. that the federal copyright law’s "first sale" doctrine – which allows a lawful owner of a copy of a protected work to sell, rent, or give away that copy – trumps the provision in the copyright law that limits the importation of copyrighted works into the United States. The court’s decision permits gray market goods to be brought into, and sold in, the United States without violating copyright law.


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Advertising, Marketing & Promotions Alert >> FTC Updates Online Advertising Disclosure Guidelines - Alert -  03/28/2013

By Ronald R. Urbach; Allison Fitzpatrick

The Federal Trade Commission (FTC) updated its online advertising disclosure guidelines to advise advertisers on how to make clear and conspicuous disclosures on mobile and social media platforms.



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Advertising, Marketing & Promotions Alert >> Trademark Clearinghouse to Begin Accepting Submissions to Protect Domain Names - Alert -  03/25/2013

By Jeffrey C. Katz; Gary A. Kibel

A newly created Trademark Clearinghouse, set up as a global repository for trademark data in connection with Internet domain names, will begin accepting submissions on March 26, 2013, to support both the registration of domain names in new generic top-level domains (gTLDs), as well as dispute resolution. Owners or licensees of valuable brands – especially those that could be used by another entity – may want to consider registering their trademarks with the Clearinghouse.


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Advertising, Marketing & Promotions Alert >> After Recent Celebrity Endorser Social Media Flubs, Contract Changes May Be Advisable - Alert -  03/06/2013

By Howard R. Weingrad; Anne DiGiovanni

Advertisers typically make sure to include protective provisions, such as morals and non-disparagement clauses, in their celebrity endorsement contracts. However, the growth of social media has led to an increasing variety of ways that endorsers can commit public acts that may reflect badly on or embarrass an advertiser, suggesting that it may be time to review and tighten up celebrity contract termination language.

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