Tag Archives: Advertising

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

Taking Another Look at Courts Interpreting Section 19 of the FTC Act

By Daniel Kaufman on July 5, 2022 Posted in FTC

After the Supreme Court held that the Federal Trade Commission (FTC) could no longer use Section 13(b) of the FTC Act to seek equitable monetary relief in federal court, the agency quickly ransacked the sofa, seeking spare change and any other statutory tools it could find to compensate. Section 19 of the FTC Act contained … Continue Reading

Dot Com Guideline Revisions Will Focus on Hyperlinks, Dark Patterns, the Metaverse and More

By Daniel Kaufman and Amy Ralph Mudge on June 21, 2022 Posted in FTC

It has been two weeks or so since the FTC announced that it is going to take a close look at whether and how to revise the Dot com Disclosure Guides. For those who are new to this, the dot com guides (technically and annoyingly titled the “.com” guides) are a helpful source document to … 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

If an Agency Calls Something Unfair, Does That Magically Make It Unlawful? A Recent Blog Post by the FTC’s Chief Technology Officer

By Daniel Kaufman on May 31, 2022 Posted in FTC

Last week, the Federal Trade Commission’s (FTC) tech blog quietly published a post that could have broad implications – for privacy practitioners and beyond. In this post, the agency takes the novel position that if consumer data is compromised in a security incident and the company does not provide consumer notice, that could in and … Continue Reading

May 2022 Public Commission Meeting – Meet Commissioner Bedoya, Plus Blasts from the Past, Endorsements and an FTC Legend

By Amy Ralph Mudge and Daniel Kaufman on May 19, 2022 Posted in FTC

In February 2020, the Federal Trade Commission (FTC) announced that it was going to reexamine the Endorsements and Testimonial Guides (Guides) and sought comment on whether and how the Guides should be changed, including addressing issues involving reviews, affiliate links, children’s perceptions and changes in technology. Two very long years later, the FTC has proposed … 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

A Deeper Dive into the FTC’s Proposed Changes to the Telemarketing Sales Rule and the Continued Interest in Negative Option Programs

By Daniel Kaufman on May 6, 2022 Posted in FTC

At last week’s public Federal Trade Commission (FTC) meeting, the commissioners unanimously voted for possible changes to the Telemarketing Sales Rule (TSR). Given the intense interest in FTC rulemaking and the important role the TSR plays in FTC enforcement, we thought this warranted a closer look. First off, this is a very different rulemaking process … Continue Reading

What’s Going on at the FTC? New Employee Survey Raises Issues If You Are Engaging with the Agency

By Daniel Kaufman on April 29, 2022 Posted in FTC

A recent survey of FTC employees put forward some interesting numbers. In 2020, FTC staff were asked if their senior leaders “maintain high standards of honesty and integrity” and 87 percent answered positively. In November 2021, the same staff were asked the same question and the positive responses dropped by 34 points to 53 percent. … Continue Reading

The FTC’s Website Redesign – Broken Links, Missing Content and Broken Dreams

By Daniel Kaufman on April 19, 2022 Posted in FTC

Whether you are an FTC fan or foe, we can all agree that one of the agency’s crown jewels is its consumer and business education program. For decades, this program has provided information that has helped consumers protect themselves and has provided businesses with important information and guidance to inform their decision making. And probably … Continue Reading

What’s in a Label – Three Takeaways from the FTC’s First Enforcement Action Brought Under the New Made in the USA Rule

By Daniel Kaufman and Amy Ralph Mudge on April 18, 2022 Posted in FTC

Last year, the Federal Trade Commission (FTC) finalized a new rule (Rule) that would allow the agency to seek civil penalties in matters where a company made a false and unqualified Made in the USA (MUSA) claim on product labels. In the rulemaking process, however, the FTC developed a very broad definition of “labels,” which … Continue Reading

Bamboozling Part II: The FTC Brings Back Retro Penalty Offense Letters like Bell Bottoms and Big Hair

By Daniel Kaufman, Amy Ralph Mudge and Randal M. Shaheen on April 12, 2022 Posted in FTC

What do bamboo fabric and green claims have to do with toys, weight loss, car rentals and fur coats? Sounds like the start of a Dad joke, but unfortunately this is no laughing matter. It is the FTC reaching back to bygone eras for help in getting money in its enforcement cases. Much virtual ink … 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? Part II – The Threat to the Restaurant and Food Packaging Industries, and Potential Personal Injury Classes

By Bethany Lukitsch, Matthew Thurlow and Kamran Ahmadian on April 1, 2022 Posted in Food Industry

In our initial blog post, we introduced readers to per- and polyfluoroalkyl substances (PFAS), known as “forever chemicals,” and predicted the rise of PFAS consumer class actions and increased regulatory activity barring the use of PFAS in consumer products in state and federal legislatures. As a quick refresher, PFAS biodegrade very slowly, are extremely persistent … Continue Reading

No Time to Weight and Watch for Children’s Data Compliance

By Daniel Kaufman and Michael Ingram on March 10, 2022 Posted in FTC

The Federal Trade Commission (FTC) recently settled with Weight Watchers (WW) and its subsidiary Kurbo for alleged violations of the Children’s Online Privacy Protection Act (COPPA). COPPA requires websites, apps and other online services to obtain express parental consent prior to collecting, using or disclosing personal information of children under 13. It is a complex … 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

You Do Have Time for This – the New Wave of FTC Rulemaking

By Daniel Kaufman on March 8, 2022 Posted in FTC

The wave of Federal Trade Commission (FTC or the Commission) rulemaking has begun, and it raises many questions: Most notably, how big is this wave going to be, why is the FTC doing this and do I have time for this? Although there has been a great deal of concern raised about whether and why … 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 and the States — Everything You Wanted to Know but Were Afraid to Ask

By Daniel Kaufman and Victoria Weatherford on March 3, 2022 Posted in FTC

A lot has been written about the impact of the Supreme Court’s AMG decision on the Federal Trade Commission’s (FTC) future law enforcement approaches and strategies. One option is more administrative litigation, but that process can take many years and requires the FTC to demonstrate that the challenged practices were “dishonest or fraudulent.” Another option … Continue Reading

Look Back, Look Ahead: State Attorneys General Enforcement – Part Two

By Craig A. Hoffman, Victoria Weatherford and Jeffrey Zohn on March 2, 2022 Posted in State Attorneys General

Last month, as part of BakerHostetler’s “Look Back, Look Ahead: Advertising and Marketing Law in 2021 & 2022” webinar series, partners Craig A. Hoffman and Victoria Weatherford presented on recent trends and predictions on state attorney general enforcement. The following summarizes our 10 predictions for state attorneys general enforcement in 2022. Prediction No. 1: Upcoming … 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