Archives: Advertising

Now Is Really the Time to Pay Attention to Dark Patterns – Seriously

By Daniel Kaufman and Randal M. Shaheen on December 7, 2022 Posted in Advertising

For months now we have been talking about dark patterns and all the regulatory chatter associated with them. Many, including us, have been wondering whether it would end up being much ado about nothing, with dark patterns just being a new name for practices such as bait and switch that have long been considered unlawful. … Continue Reading

Brought to You by the FTC: Event on Digital Marketing and Blurred Advertising to Kids

By Amy Ralph Mudge and Daniel Kaufman on October 20, 2022 Posted in Advertising, FTC

Amy Mudge and Daniel Kaufman Yesterday, the Federal Trade Commission (FTC) hosted an event to look at kids’ digital marketing. Here is a rough transcript; and if you have a spare five hours, you can watch the videos, which will soon be posted on the event page. The big question is whether the FTC will … Continue Reading

Coinbase Decision Highlights Importance of Official Rules’ Dispute Provisions

By Linda A. Goldstein and John P. Ferry on September 19, 2022 Posted in Advertising

In a rare example of a sweepstakes leading to litigation, Coinbase and its promotion agency, Marden-Kane, were sued over a sweepstakes run by Coinbase and administered by Marden-Kane titled “Trade Doge. Win Doge.” As part of that sweepstakes, Coinbase offered prizes totaling $1.2 million of Dogecoin to individuals who purchased or sold $100 worth of … Continue Reading

The Matrix of Guardrails for the Metaverse Grows (Plus Weekend Movie Viewing Recommendations)

By Amy Ralph Mudge and Michael Ingram on August 26, 2022 Posted in Advertising, Digital Media

We are not quite at the Matrix moment of a red pill/blue pill choice yet, but we are moving closer every day to the possibility of a fully immersive virtual world. And the regulators and watchdogs are already thinking about how we can protect the kids when they venture not outside in the real world … Continue Reading

Recent Summary Judgment Decision in FleetCor Case Spells Trouble for CEOs and Disclaimers

By Daniel Kaufman on August 17, 2022 Posted in Advertising, FTC

A recent federal court decision found that FleetCor, a company that sells fuel card services to businesses, and its CEO had violated the Federal Trade Commission (FTC or Commission) Act through a series of deceptive and unfair acts and practices. It is not every day that the FTC sues the CEO of a publicly traded … Continue Reading

TINA Issues Warning Letters to Celeb NFT Endorsers

By Lauren Bass and Amy Ralph Mudge on August 16, 2022 Posted in Advertising

From Eminem to Snoop Dog, Tony Hawk to Lionel Messi, William Shatner to Brie Larson, music, sports, and Hollywood celebrities have eagerly jumped on the NFT (non-fungible token) bandwagon. Whether launching their own collections, purchasing an expensive profile pic, or simply endorsing new artists, celebrities have embraced blockchain technology and have been extolling the virtues … Continue Reading

Straight Talk from NAD: Recent Case Outlines when Comparative Claims Must Be Qualified

By Amy Ralph Mudge on August 12, 2022 Posted in Advertising

Sometimes advertising lawyers can be real drama royals. But I do think the latest in the teeth-straightening wars at NAD deserves some attention. I am not yet sure if this signals a new direction for NAD or if this case will be more limited to cases with comparative savings messages. But its recommendation goes beyond … Continue Reading

NAD Cleans Up ‘Doctor Recommended’ Claim for Baby Wipes

By Amy Ralph Mudge on August 12, 2022 Posted in Advertising

It is too early to tell if we have a baby wipes war developing to compete with the diapers wars, but we certainly have had lots of activity this year involving the disposable cleanup cloths. An earlier action focused on the adequacy of the substantiation of a claim that WaterWipes were the “#1 wipe against … Continue Reading

Advertising and Regulation of CBD Products

By Lee H. Rosebush, Randal M. Shaheen, Laura Macherelli and John P. Ferry on August 9, 2022 Posted in Advertising, CBD

If you have been to any kind of spa, beauty supply store or health food store in the past four years, chances are you have seen, if not purchased, a product with cannabidiol (CBD). The 2018 passage of the Farm Bill removed hemp-deprived products, like CBD, from the Controlled Substances Act, leading to a flood … Continue Reading

3 Things to Address in Digital Media Agreements

By Aaron Goodman on August 4, 2022 Posted in Advertising, Digital Media

The ad creative has been produced and approved. The media plan has been crafted. Now it’s time to execute on the plan, and that involves buying the media – i.e., purchasing ad space to place your ads on different media channels (television, print, websites, etc.) so people can see them. Or maybe you’re a publisher … Continue Reading

What Even Is Ad Tech?

By Aaron Goodman on July 26, 2022 Posted in Advertising

“What is ad tech?” That is a question I’ve been asked and have answered numerous times. I recently joined BakerHostetler’s Chicago office in the Digital Assets and Data Management Practice Group after spending almost eight years at Publicis Groupe, where I led a team of attorneys supporting business units focused on media, data and advertising … Continue Reading

The 13th Public Commission Meeting – an AI Study About Online Scams and, Yes, Another Policy Statement

By Daniel Kaufman and Amy Ralph Mudge on June 16, 2022 Posted in Advertising

We spend many of our working hours – and far too many of our nonworking hours – talking about Federal Trade Commission (FTC or Commission) issues, and we can confidently state that no one has ever said to us, “I sure do wish the agency would issue yet another policy statement.” With that, we turn … Continue Reading

Pride Month and the Onslaught of Rainbow Corporate Logos

By Daniel Kaufman and Amy Ralph Mudge on June 3, 2022 Posted in Advertising

Many of us have become accustomed to the fact that every June, with the calendar signaling LGBTQ+ pride month, we get the inevitable onslaught of corporate logos incorporating the colors of the rainbow flag. And at the end of June, the logos revert to their less colorful versions. The cynics among us like to focus … Continue Reading

And Then There Were Five – Commissioner Bedoya Has Arrived

By Daniel Kaufman on May 18, 2022 Posted in Advertising

When a new commissioner arrives at the Federal Trade Commission (FTC or Commission), there are some changes to expect as that new person gets up to speed and learns how different it is to be at the FTC versus watching what the Commission does from the outside. But the addition of a new commissioner can … Continue Reading

What Is a PFAS, and Why Should I Care? Part III – California’s Proposition 65

By Ryan Fischbach, Bethany Lukitsch, Matthew Thurlow and Theodore Weiss on May 12, 2022 Posted in Advertising

In Part I and Part II of this blog series, we introduced and discussed per- and polyfluoroalkyl substances (PFAS), commonly referred to as “forever chemicals,” which have been recent targets of consumer class actions and regulatory enforcement due to their alleged human health risks. As a quick refresher, PFAS includes a class of more than … Continue Reading

The Future’s So Bright, I Gotta Wear BluBlockers – A Walk Through Advertising History

By Daniel Kaufman and Amy Ralph Mudge on April 4, 2022 Posted in Advertising

The other day, we noticed an article announcing that legendary direct marketer Joe Sugarman had passed away. He had quite a career in the industry but was probably best known for the omnipresent BluBlocker sunglasses that were on heavy rotation in the 1980s and early ’90s. For younger readers, BluBlockers were ultra-cool sunglasses that promised … Continue Reading

What is a PFAS, and Why Should I Care?

By Bethany Lukitsch, Kamran Ahmadian, Julie Singer Brady, Matthew Thurlow and Amy Ralph Mudge on March 9, 2022 Posted in Advertising

We are bombarded with countless abbreviations every day – CPPA, GLBA, MSRP, SARS and BPA, to name just a few. Time to add one more to the list. Per- and polyfluoroalkyl substances, colloquially known as PFAS, are a class of more than 4,700 chemical compounds, the components of which break down very slowly over time. … Continue Reading

Leveling Up: Advertising to Children Through Video Games

By Carolina Alonso, Michael Ingram and Amy Ralph Mudge on March 7, 2022 Posted in Advertising

Video games have come a long way from the days of Atari’s Pong; today’s games can contain fully immersive worlds complete with brand partnerships. Video game platforms, such as Roblox, which boasts over 100 million active users in its virtual world, can reach swaths of potential brand loyalists. For many companies and brands, video game … Continue Reading

FTC Issues Guidance on Use of Consumer Reviews: Brands, Platforms and Comparison Websites Are in the Hot Seat

By Linda A. Goldstein on February 8, 2022 Posted in Advertising, FTC

The use of consumer reviews as a marketing strategy has grown exponentially in recent years, and brands have become increasingly reliant on consumer reviews as a marketing strategy to drive consumer purchase behavior. In fact, a recent study by Bright Local revealed that over 85 percent of consumers trust online reviews as much as recommendations … Continue Reading

Made in USA, Part Three – Materials Not Available in the US

By Randal M. Shaheen and Amy Ralph Mudge on February 7, 2022 Posted in Advertising, FTC

This is our third blog in a series that is examining potential ambiguities in the Federal Trade Commission’s (Commission) Made in USA (MUSA) guidance – ambiguities that become particularly more important now that MUSA claims in labeling are the subject of a new Commission, the violation of which can lead to civil penalties. Suppose a … Continue Reading

Thoughts on Working with B2B Influencers

By Amy Ralph Mudge and Matthew Renick on February 1, 2022 Posted in Advertising

There was a good piece in MediaPost’s Marketing Insider, available here, on business considerations for working with B2B influencers. We thought we might add our legal tips to Justin Levy’s five tips list. That way we get to 10, and, well, anything short of a top 10 countdown just seems like it’s missing something. Tip … Continue Reading

Texas’ Latest Lawsuit Against Google Challenges Endorsements Made by Radio Personalities

By Victoria Weatherford and Lisa Virgen on January 27, 2022 Posted in Advertising, FTC

Last week, the State of Texas sued Google in state court for allegedly deceptive advertisements by radio personalities (radio DJs) praising the Google smartphone, the Pixel 4. The lawsuit claims that Google violated the state’s Deceptive Trade Practices Act when it used radio personalities to read scripted testimonials before they had access to the phone. … Continue Reading

Brand NFT Advertising Basics, or One for All of Us Who Wanted a Pony Growing Up, Who Don’t Quite Get the NFT Buzz, and Who Really, Really Need a Vacation

By Amy Ralph Mudge and Matthew Renick on January 18, 2022 Posted in Advertising

This may be one of the best ads in recent memory – an ad promoting visiting Lexington, Kentucky, horse capital of the world. The ad promises to make kids’ holiday dreams come true with the opportunity to buy “Non Fungible Thoroughbreds” at VisitLEX. The horses have names like Ol’ Pixel Face, iHorse, OpenSea Biscuit, Notta … Continue Reading

AdTech: Regulation, Compliance and Where We are Heading

By Theodore J. Kobus III on January 10, 2022 Posted in Advertising

Partners Fernando Bohorquez, Gerald Ferguson, Linda Goldstein and Jeewon Serrato, and Associate Justin Yedor served as panelists in a recent article published in the January 2022 issue of Financier Worldwide. In the article, they offer insights regarding key advertising technology regulation and compliance trends, including recent digital advertising efforts, benefits and insights, and current regulatory … Continue Reading