With the first quarter of 2024 in full swing, it is a good time for brands to revisit marketing compliance strategies to minimize the risk of potential class actions, regulatory enforcement actions, and competitor challenges. This Update highlights hot topics in advertising law for 2024.

AI-generated robocalls may trick some consumers into thinking they are being called by a human being, but the Federal Communications Commission clarified in a recent AI Declaratory Ruling that it will not be fooled.

After a series of intensive negotiations among representatives of the European Union’s three governing bodies, the EU has concluded its “trilogue” meetings with a “political agreement” on the terms of its forthcoming Artificial Intelligence Act.

In a politically divided 3-2 vote, the FCC updated its data breach notification rules, which had been in effect since before the release of the first iPhone.

Governor Gavin Newsom recently approved California’s SB 244, also referred to as the Right to Repair Act, positioning California as a pivotal state advocating for comprehensive electronics or appliance repair rights.

Amanda Beane and Tim Carter's update as part of the Summer Sustainability Series was republished by Bloomberg Law regarding certain regulatory developments in the United States and EU related to green claims.

Following a related request for information earlier this year, the Consumer Financial Protection Bureau announced on August 15, 2023, its intention to launch rulemaking targeting data brokers.

The Federal Trade Commission recently finalized updates to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address the FTC’s latest thinking about how the truth-in-advertising standards under the FTC Act apply to endorsement and review-related issues.

Brands continue to promote sustainable and eco-friendly qualities of their products and services, and regulators are sharpening their enforcement tools in response. This Update summarizes certain regulatory developments in the United States and EU related to green claims.

Senate Majority Leader Charles Schumer (D-NY) unveiled his much-anticipated, bipartisan legislative framework for regulating artificial intelligence during recent public remarks. To support this new framework and the resulting policy proposals, Senator Schumer has formed a bipartisan AI working group that will work closely with the leaders of the Senate’s Commerce, Homeland Security, Antitrust, Judiciary, and Intelligence committees to shape the draft legislation.

The National Science and Technology Council recently bolstered the Biden administration’s continued focus on responsible AI development by announcing an update to the National Artificial Intelligence Research and Development Strategic Plan.

The Federal Trade Commission recently announced a notice of proposed rulemaking to expand its Negative Option Rule to apply to all recurring subscription programs.

This Update discusses a spate of recent class action lawsuits asserting claims under the Video Protection Privacy Act.

The Consumer Financial Protection Bureau announced on March 15, 2023, that it is issuing a Request for Information about the business practices of data brokers, which the agency said will assist it in “planned rulemaking” under the Fair Credit Reporting Act.

Buried within the thousands of pages of the Consolidated Appropriations Act of 2023 is the most significant statutory expansion over cosmetics to the U.S. Food and Drug Administration’s authority since 1938. Among the spending bill’s many provisions is the Modernization of Cosmetics Regulation Act of 2022, which will have lasting effects on the cosmetics industry. Among other measures, MOCRA will provide FDA authority to conduct mandatory cosmetics recalls, create adverse event reporting and recordkeeping requirements, and establish good manufacturing practices.

By conducting due diligence and securing reasonable contractual protections before entering a relationship, brands and personalities can start their partnerships on the right foot and help protect their value and reputations. In this Update, we outline some key steps to help avoid potential public relations and legal woes associated with co-branding and endorsement arrangements.

This series of updates contains information regarding issues and trends facing the retail industry during the holiday season. The list highlights all of our published updates on this topic.

Another new year approaches, so it’s time for retailers to revisit advertising and marketing law compliance strategies to avoid class actions, regulatory enforcement actions, and competitor challenges. In this Update, we share our picks for the top five U.S. marketing law topics that deserve your attention in 2023.

The Federal Communications Commission has adopted new rules requiring broadband internet service providers to display labels that enable consumers to easily compare broadband service offerings.

The Office of Science and Technology Policy, a part of the Executive Office of the President, recently published a white paper entitled “The Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People.”

New Jersey has become the latest state to pass a law governing some types of automatically renewing subscriptions.

Laura Brett, Vice President of BBB National Programs' National Advertising Division (NAD), recently spoke with Jason and Amanda to discuss recent trends at the NAD, along with her reactions to the Federal Trade Commission's proposed updates to the Endorsement Guides that set rules of the road for influencer marketing and the use of consumer reviews in advertising.

Brands recognize that consumers value sustainability and continue to promote the green and eco-friendly qualities of their products and services. However, with growing popularity comes extra scrutiny, and “green claims” are increasingly subject to challenge by regulators, competitors, and class action plaintiffs.

The U.S. Court of Appeals for the District of Columbia Circuit recently denied a petition to review a 2020 Federal Communications Commission order that permitted callers to place commercial non-telemarketing robocalls to residential phone numbers and that established uniform call limits for such calls.

The Federal Communications Commission recently adopted certain final rules, policies, and proposed rules to “stem the tide of foreign-originated illegal robocalls.”

The Federal Trade Commission recently proposed updates to its Guides Concerning the Use of Endorsements and Testimonials in Advertising. This article introduces key proposed changes to the Guides that signal the FTC’s evolving views on how to avoid deceptive practices related to social media influencers, customer review programs, advertising to children, and more.

Jason Howell and Amanda Beane talk with Janis Kestenbaum, partner at Perkins Coie and former Federal Trade Commission (FTC) attorney, about the makeup and direction of the FTC as it relates to advertising and marketing law.

Savvy companies keep a watchful eye out for advertising, marketing and promotion practices that tend to draw significant scrutiny from consumers and regulators. This year, the Federal Trade Commission is expected to be more aggressive on consumer protection issues than it has been in the recent past, and the state consumer protection law and enforcement landscape is shifting too.

On February 15, 2022, the Federal Communications Commission unanimously adopted new rules intended to give tenants in multi-tenant environments greater choice in selecting broadband and cable service provider services

The Federal Communications Commission recently proposed new rules that would require internet service providers to display labels that allow consumers to comparison shop for broadband services.

Businesses that allow customers to sign up for automatically renewing subscriptions must comply with a patchwork of state and federal regulations.

The U.S. Department of Justice recently entered into settlement agreements with Hy-Vee and Rite Aid in response to the DOJ’s concern that the companies’ vaccine registration websites were not accessible to individuals with vision impairments and other disabilities.

‘Tis the season for retailers to set best practices to avoid class actions, regulatory enforcement actions, and competitor claims.

Jason Howell and Amanda Beane team up with Mark Richardson from Target Corporation to discuss the New York state Pink Tax law and its application to retailers and brands.

For 50 years, the National Advertising Division (NAD) has been at the forefront of monitoring national advertising, enforcing high standards of truth and accuracy, and resolving advertising disputes (typically between competitors) to build consumer trust and support fair and truthful marketing.

Congress recently passed the long-awaited bipartisan Infrastructure Investment and Jobs Act. The law allocates over $1 trillion in new and repurposed funds to upgrading the country’s infrastructure.

In this issue of the Perkins Coie Summer Sustainability Series, we discuss best practices based on Federal Trade Commission guidance and the most recent green advertising litigation trends.

This update summarizes a recent publication subject to public comment adopted by the National Institute of Standards and Technology (NIST): “A Proposal for Identifying and Managing Bias in Artificial Intelligence.” 

President Biden’s recent "Executive Order on Promoting Competition in the American Economy" promotes fair competition regulations across a diverse group of key U.S. industries and includes 72 separate initiatives involving more than a dozen federal agencies.

Jason Howell and Amanda Beane team up with Miriam Farhi, co-chair of Perkins Coie’s Privacy & Security practice, to discuss common legal issues and pitfalls associated with loyalty and rewards programs, including in the areas of marketing, privacy, and litigation.

Companies continue to use various marketing initiatives and tactics to differentiate themselves in the marketplace, while navigating the ongoing pandemic and new legislative and regulatory developments.

On April 22, 2021, in a unanimous decision, the U.S. Supreme Court in AMG Capital Management v. FTC held that the authorization to seek a “permanent injunction” under Section 13(b) of the Federal Trade Commission Act does not permit the FTC to obtain equitable monetary relief such as restitution and disgorgement. While the FTC may still seek monetary relief under Sections 5 and 19 of the Act, those provisions can be more difficult for the FTC to pursue. FTC Acting Chairwoman Rebecca Kelly Slaughter is already calling on Congress to “strengthen the FTC’s powers” in light of the decision.

In this episode, Jason Howell and Amanda Beane discuss compliance tips and litigation risks for businesses. 

The Supreme Court’s recent decision in FCC v. Prometheus Radio Project et al. is significant for both the decision’s effect on the regulation of the broadcast television industry and its clarifications of administrative law. In Prometheus, the Court restored the Federal Communications Commission’s 2017 order on reconsideration to repeal or modify three core broadcast television ownership rules. This client update summarizes the decision and provides key takeaways on the ruling’s implications for M&A and other transactions in the broadcast industry.

Jason Howell and Amanda Beane and guest Lindsey Buckner from 7-Eleven discuss common challenges for in-house legal, including how to seamlessly integrate with in-house marketing teams and how to create work-life boundaries while working from home during the pandemic.

Shortly after his inauguration, President Biden appointed Commissioner Jessica Rosenworcel as acting chairwoman of the U.S. Federal Communications Commission.

On January 8, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced proposed regulations that would significantly affect how businesses may use short-form Proposition 65 warnings.

Ring in the new year by avoiding practices that could result in class actions, regulatory enforcement actions, and competitor claims.

Proposition 65 warning requirements announced last year are set to be enforced starting January 3, 2021; if your business is selling cannabis products in California, now is the time to ensure that your labeling complies with state requirements. 

Jason Howell and Amanda Beane discuss the basics of “was/now” pricing, discounts off of list and MSRP prices, and free offers.

Jason Howell and Amanda Beane discuss green advertising, marketing, and sustainability issues, and how to navigate related pitfalls.

Hundreds of COVID-19-related class action claims have been filed in state and federal courts throughout the country.

Brands continue to build their sustainability and environmental marketing programs in response to consumer demand.  

Jason Howell and Amanda Beane discuss practicing law in the current climate and share hot marketing and litigation topics and observations during COVID-19, including health claims, cause marketing, and consumer contracts.

The U.S. Food and Drug Administration (FDA) submitted a report to Congress on July 8, 2020, providing an analysis of the cannabidiol (CBD) marketplace.

The Entertainment Software Ratings Board (ESRB) issued a new labeling requirement for games containing “loot boxes” in April 2020.

The U.S. Supreme Court held this week that willfulness is not a prerequisite for an award of profits for violation of Lanham Act § 43(a), 15 U.S.C. § 1125(a), resolving a longstanding circuit split.

In response to great interest from Silicon Valley, Federal Communications Commission Chairman Ajit Pai has released draft rules that would make valuable spectrum available for unlicensed wireless broadband services (i.e., Wi-Fi) in the 6 GHz band (5.925-7.125 GHz).

Recognizing the high volume of COVID-19 content being published, Perkins Coie developed a one-stop, integrated resource page that addresses key legal and business considerations for companies across essential business areas, from insurance coverage and labor and employment, to privacy and security, corporate governance, tax, construction, supply chain, and more.

In the wake of COVID-19, parties may (1) be in a contractual relationship with a counterparty that asserts it cannot perform or (2) find themselves unable to fulfill their own contractual obligations.

Last Friday, the White House declared a national state of emergency amid concerns of the global spread of the coronavirus. Nearly every state and numerous cities have followed suit by issuing declarations triggering emergency measures and regulations on businesses.

The federal Food and Drug Administration (FDA) just released a report to Congress regarding the agency’s progress toward comprehensive regulation of hemp-derived cannabidiol (CBD).

California’s Office of Environmental Health Hazard Assessment (OEHHA) added Δ9‑tetrahydrocannabinol, better known as “THC,” to the list of chemicals requiring specific labeling for retail sale in California. 

The parties to class action litigation frequently contest whether plaintiffs are entitled to pre-certification discovery aimed at identifying additional or replacement class representatives.

The U.S. government and industry face pressure to compete with China, the EU, and others in the race to implement the next great advance in wireless network technology known as 5G.

Don’t let the new year be ruined by U.S. class actions, regulatory enforcement actions, or competitor claims. Here are five ad law takeaways for brand and legal teams to consider as 2020 approaches.

On the heels of the U.S. Food and Drug Administration’s (FDA) recent declarations regarding the safety of products containing cannabidiol (CBD), several companies have been hit with class action lawsuits alleging that the company’s CBD-containing products are mislabeled and falsely advertised in violation of state law.

On November 25, 2019, the U.S. Food and Drug Administration (FDA) took several significant actions regarding sellers of products containing cannabidiol (CBD).

On October 7, 2019, the U.S. Supreme Court denied a petition filed by Domino’s Pizza asking the Court to decide whether Title III of the Americans with Disabilities Act (ADA) applies to websites and mobile apps.

A competitor has engaged in high-profile false advertising, and your CEO wants to use an enforcement hammer with more weight than a cease-and-desist letter. 

Following the recent public hearing held by the Food and Drug Administration (FDA) regarding the safety and efficacy of cannabidiol (CBD), many in the food and beverage industry asked how long it will take for the agency to establish a regulatory pathway for approval of CBD as a food additive.

The U.K. Modern Slavery Act of 2015, which was modeled after the California Transparency in Supply Chains Act, requires companies falling under its jurisdictional hook (and there are many) to honestly and completely disclose their efforts to eradicate trafficked, slave, indentured, coerced and child (collectively “forced”) labor from their supply chains.

The U.S. Court of Appeals for the Ninth Circuit issued a decision on January 15, 2019 in a closely followed web accessibility case, Robles v. Domino’s Pizza, LLC, reaffirming Ninth Circuit precedent holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under the Americans with Disabilities Act for failing to make their websites and apps accessible to persons with disabilities.

As of January 3, 2019, the Federal Communications Commission (FCC) has suspended most of its operations for the duration of the government shutdown due to the agency’s exhaustion of available funds. This alert summarizes how and the extent to which the shutdown affects FCC operations, based on the FCC’s plan for orderly shutdown released on December 18, 2018 and Public Notice released on January 2, 2019.

Google won summary judgment in Rivera v. Google, a privacy class action alleging violations of the Illinois Biometric Information Privacy Act (BIPA). The case involved “face grouping,” a feature that enables Google Photos to automatically sort and group the photographs in a user’s private account, based on visual similarities between the images of faces in the photos. The court held that any alleged collection of “biometric information” or “biometric identifiers” stemming from this feature did not cause an injury-in-fact sufficient to confer Article III standing. This update summarizes the decision, which may be relevant to clients involved with biometric technology, as well as other clients facing litigation where a no-injury defense may be applicable.

Here are five ad law takeaways for brand and legal teams to consider as 2019 approaches.

U.S. consumers notice and are more likely to buy products that are marketed as Made in USA. President Donald J. Trump proclaimed in his inaugural address that we should “follow two simple rules: Buy American and Hire American.”

On June 28, 2018, California adopted the strictest general privacy and data security law in the country, called the “California Consumer Privacy Act” (codified in Assembly Bill 375), which will come into effect on January 1, 2020.

The American Bar Association’s 66th Antitrust Law Spring Meeting held earlier this month included many sessions on consumer protection.

The Federal Election Commission took a step last week toward clarifying the “paid for by” and other disclaimer requirements that apply to political advertisements that appear on digital media.

Last Friday, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued its long-awaited decision in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. Mar. 16, 2018).

The Federal Trade Commission is experiencing a major shakeup this year, with several new commissioners slated for approval. The changing composition of the FTC has led many to believe that the newly-appointed commissioners will be less active than their predecessors – or at least less inclined to seek financial penalties for certain marketing tactics – but that they will still target advertising practices that deceive and harm consumers.

This holiday season, brands are ready for bustling sales, special offers and joyful consumers.

From fashion clothing in the mail to gym memberships to monthly mobile app subscriptions, the subscription-based business model is everywhere and here to stay.

This update has been republished in California Lawyer on 12.04.2014, "Auto-Renewal Update."

The holiday season is around the corner, and retailers are planning their holiday marketing campaigns.

The FTC recently issued more than 90 letters to marketers and their social media influencers warning that influencers must clearly and conspicuously disclose material connections in social media posts that promote the marketer, unless the connection is already clear from the context of the posts.

With the 2016 holiday shopping season in full swing, the risk of litigation heightens for retailers. We created our own version of a “holiday list” to identify the top-10 risk areas where retailers may be vulnerable to claims and lawsuits. 

This year brought a wave of class action complaints alleging that national retailers are violating the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. §§ 56:12-14 et seq., by including certain provisions in their online terms and other consumer-facing notices and agreements.

The Supreme Court of California ruled last week that consumers could assert claims under California consumer protection statutes for intentionally mislabeling products as “organic.”  In a unanimous opinion, the court reversed a lower court’s ruling that the plaintiff’s claims were preempted by the federal Organic Foods Production Act (Organic Foods Act).

On Tuesday, November 10, 2015, the United States Food and Drug Administration (FDA) announced that it will accept public information and comment on the term “natural” in the labeling of food products, including foods that are genetically modified or contain genetically modified organisms (GMOs).

With the holidays approaching, retailers and their advertising partners are preparing for the busiest time of the year.  Sales advertising is a staple of holiday marketing campaigns, which often include “former price” comparisons, in which retailers emphasize new, lower prices reduced from pre-holiday “regular” prices.

In last Friday’s long-awaited TCPA Omnibus Declaratory Ruling and Order (Order), the Federal Communications Commission (FCC or Commission) may have dramatically altered the landscape for TCPA class action defense.

The Antitrust Division of the U.S. Department of Justice recently announced its first criminal antitrust prosecution in e-commerce. David Topkins was charged on April 6, 2015, with price fixing in violation of Section 1 of the Sherman Antitrust Act in the online sale of decorative posters.

The Supreme Court addressed the preclusive effect of decisions of the USPTO’s administrative court, the Trademark Trial and Appeal Board (TTAB), on district court trademark infringement proceedings in B&B Hardware, Inc. v. Hargis Indus., Inc. In its ruling this week, the Court held that a district court should give preclusive effect to a TTAB decision if the ordinary elements of issue preclusion are met.

The holidays are quickly approaching, and shoppers are expected to spend in excess of $600 billion this season. The holiday season is shaping up to become a winter wonderland for retailers.

Your product teams surely have already finalized their lineup of holiday winners, the new gizmos and must-have widgets that you hope end up on everyone’s wish lists.

Previously, a logo registered in black and white was considered sufficient to protect versions of the logo in any color, but this is not necessarily true for European Union (EU) Community Trade Marks (CTM). Under the new rule, logo trademarks filed in black and white or greyscale might not protect the same mark in color.

The Federal Trade Commission (FTC) recently investigated whether Cole Haan’s “Wandering Sole” social media contest violated Section 5 of the FTC Act, which prohibits deceptive practices.

California recently enacted two laws regarding Do Not Track Transparency and Advertising to Minors that will have a significant impact on all companies that operate commercial websites, host mobile applications or provide advertising or analytics technology services.

Facebook recently updated its Promotion Guidelines to ease restrictions on conducting contest and sweepstakes promotions on the Facebook platform.  Facebook previously required promotion sponsors to administer promotions through apps and restricted sponsors’ use of basic Facebook functions, such as a "like" or a message to a sponsor’s Facebook Page, in connection with a promotion.

On July 1, 2013 the FTC’s amended COPPA Rule went into effect. On the same day, the commission also released a six-step compliance plan to aid businesses in complying with the new rule. On July 26, the commission issued further guidance on the rule, particularly as it applies to social network plug-ins and ad networks, in the form of updated FAQs.

Even as efforts to achieve industry-wide consensus on Do Not Track appear to be stalling, self-regulatory associations are forging ahead with their own rules governing online and mobile data collection.  On July 24, the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI) each released rules governing the use of data collected through mobile applications.

On Tuesday, July 16, 2013 the Tracking Protection Working Group of the World Wide Web Consortium (W3C) rejected a proposal put forward by the Digital Advertising Alliance (DAA) to reframe the activity covered by Do Not Track (DNT) signals.

The U.S. Supreme Court issued its decision in Citizens United v. FEC, a case examining the legality of a documentary film released in 2008 about Hillary Clinton’s candidacy for president. In a 5-4 ruling, the court struck down laws banning independent electoral and issue advocacy sponsored by nonprofit and for-profit corporations.

Jason Howell and Amanda Beane, co-chairs of the firm’s Advertising, Marketing & Promotions (AMP) industry group, partnered with Laura Brett of BBB National Programs to host a marketing and advertising law panel discussion on April 5.

Perkins Coie is a platinum sponsor of the virtual 2021 ANA/BAA Marketing Law Conference.

Perkins Coie was a platinum sponsor of the virtual 2020 ANA/BAA Marketing Law Conference.