Covering Your Ads : Advertising & Marketing Lawyer & Attorney : Sheppard Mullin Law Firm : Entertainment, Sports, Publicity

Proposition 37, the California Right to Know Genetically Engineered Food Act ("Prop 37”), if approved by the voters on November 6, 2012, will provide that food offered for retail sale in California produced with genetic engineering (“GMO food”) is misbranded unless clearly labeled to say it is genetically engineered. Prop 37 also provides that GMO “processed food” may not on its label, store signage, advertising or promotional materials state or imply that the food is “natural” or words of similar import.

Ballot materials prepared by the Legislative Analyst’s Office (LAO) state that Prop 37 could be interpreted to mean “processed food” is subject to the prohibition against “natural” labels, even if it is not produced with genetic engineering. In our view, this is not the correct interpretation of Prop. 37.

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By Craig Cardon, Brian Anderson, Rachel Hudson.
 

On January 5, 2011, the Third Circuit issued its decision in New Jersey Retail Merchants Association v. Sidamon-Eristoff, Case No. 10-4551 (3d Cir. Jan. 5, 2012). The appellate court affirmed the decision of the District Court partially granting and partially denying a motion for a preliminary injunction of enforcement of New Jersey's unclaimed property law as applied to gift cards or stored value cards ("SVCs").

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Advertisers are constantly looking for new ways to obtain more information from and about online consumers in an effort to provide a more enriching and satisfying online experience for the consumer.  At the same time, consumers are becoming more and more knowledgeable about the online collection of their information and are finding new ways to prevent it. As technology evolves, advertisers are seeking to strike a balance between their business objectives and the rights and desires of the modern consumer.  What if an advertiser were able to collect weeks, or even months of personal data, including a consumer’s location, time zone, photographs, text from blogs, shopping cart contents, emails and a history of web pages visited, all without the consumer giving consent? Would the collection of such information merely provide for a significantly enriched user experience, or does it present a substantial invasion of privacy? The World Privacy Forum fears the latter, and along with various class action plaintiffs’ lawyers, points to the increasing use of HTML5 as a data collection vehicle as the source of grave concern.

This article by Ben Mulcahy and Gina Ilardi was originally published in the Metropolitan Corporate Counsel. To read the article please click here, or visit the Metropolitan Corporate Counsel website.

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On December 21, 2010, the FCC approved controversial net neutrality rules in a party-line vote. Democratic Commissioners Copps and Clyburn joined Chairman Genachowski in approving the Order, despite concerns that it did not go far enough. Republican Commissioners McDowell and Baker wrote lengthy dissents, arguing that the FCC had stepped far beyond its regulatory authority in approving Internet regulations.
 

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The image of 36 women wearing skimpy orange dresses at a World Cup soccer match last June raised the ire of Fédération Internationale de Football Association ("FIFA"), which had two of the women arrested for organizing the ambush marketing stunt on behalf of Dutch beer brewer Bavaria. Meanwhile, Nike’s "Write the Future" soccer-themed commercial, which is a 3-minute magnum opus featuring players from various national teams that qualified for the World Cup 2010, was allowed to launch an epic reign on YouTube unfettered by any interference from FIFA. Commentators have already pointed out that the players involved in Nike’s "Write the Future" campaign had disappointing World Cups: Ronaldinho didn’t even make the Brazil squad, while Cristiano Ronaldo, Wayne Rooney, Franck Ribery, Didier Drogba and Fabio Cannavaro were all knocked out of the World Cup 2010 before the quarterfinals, each after enduring various misfortunes. But that did not stop the spot from generating major brand exposure for Nike and accumulating more than 21,200,000 hits and counting on YouTube. How can FIFA justify having women arrested for wearing orange dresses while doing nothing against Nike? Only FIFA can definitively answer this riddle, but FIFA itself publicly forecasted that it would take this approach months before the World Cup 2010 even began.

This article by Ben Mulcahy was originally published in the Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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Last week Sun Chips pulled its biodegradable snack bag off the market around the same time that the FTC announced that it wanted to change its so-called "Green Guides." Coincidence? Maybe.  Sun Chips explained that the more environmentally-friendly bag that it launched with a nice spot on Earth Day -  was "noisier" than its regular bag, raising complaints from consumers who were more interested in having a quiet snack bag than doing something to help save the planet.  But complaints about "noisy" bags aside, the changes that the FTC has proposed to the Green Guides will make it harder for marketers like Sun Chips to tout the things that they're doing to help reduce the negative effect that their product manufacturing and distribution pipelines are having on the environment.  If the FTC takes away a brand's ability to tout those attributes, then it also takes away a brand's ability to leverage those attributes to increase sales.  And if that's taken away, we run the risk that brands will make green initiatives less of a priority, which will hurt us all.
 

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This week the Governor of California vetoed what would have been a landmark law on data breach notification. The law sought to strengthen the notification required when databases of personal information are compromised. California’s existing data breach law, which will continue unamended, requires companies and state government agencies to notify individuals when their personal information has been compromised.
 

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Words matter. Words can come back and bite you. Think before you speak. These are all self-evident truths that no one is likely to dispute. Yet, we continue to see examples of people, who should know better, doing just the opposite. This is especially true in the context of electronic communications – first, in work emails, and now, on social media websites. If it was a simple matter of personal embarrassment alone, then there would be no need for this article. This is not the case however. 
 

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The verdict in a recent high profile case alleging false advertising claims is significant for the store brand industry.  The case involved Perrigo Company, a producer of dietary supplements for the private label market, and Rexall Sundown, Inc.  The jury upheld the practice of communicating choice to consumers through the use of a comparison statement specifically identifying a national brand
 

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The Dilemma

In what began as an innovative way to improve advertising efficiency, online behavioral advertising has spawned “Big Brother”-type fear among watch-dog groups worried about consumer privacy. According to the advertising industry’s “Self-Regulatory Principles For Online Behavioral Advertising,” online behavioral advertising is “the collection of data from a particular computer or device regarding Web viewing behaviors over time . . . for the purpose of using such data to predict user preferences or interests to deliver advertising to that computer or device based on the preferences or interests inferred from such Web viewing behaviors.” In a recent Annenberg study, 66 percent of American adults indicated they did not want websites or networks targeting advertisements to them. Representing the other side of the spectrum, a representative of the American Association of Advertising Agencies has explained, “[M]arketers want their messages delivered to the customer most likely to buy—that is both economically efficient and completely sustainable in a consumer-driven, competitive marketplace.” The dilemma is thus presented: how to balance the privacy concerns surrounding the collection of personal information with the need to subsidize the availability of online content through effective and cost-efficient advertising. This is the dilemma that will eventually be addressed one way or another, either through continued industry self-regulation, or through actual regulation.
 

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On March 29, 2010, FDA published a proposed rule setting forth how it would interpret the Congressionally mandated requirement that “major statements” in broadcast Director-to-Consumer (“DTC”) advertisements for prescription drugs be presented in a “clear, conspicuous and neutral manner." See proposed 21 C.F.R. § 202.1(e), 75 Fed. Reg. 15376 (March 20, 2010).  
 

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The National Collegiate Athletic Association (“NCAA”) profits handsomely from the increasingly lucrative collegiate licensing and merchandising market— estimated to be worth $4 billion annually. Yet, current and former NCAA athletes do not share in these licensing fees. Two ways that the NCAA has accomplished this result are by requiring NCAA athletes to sign away their licensing rights, and by refraining from licensing players’ names to popular products such as video games. However, all of that may change as a result of related class action lawsuits filed by former Arizona State and Nebraska quarterback Sam Keller and former UCLA basketball star Ed O’Bannon.

The following article by Daniel Brown and Dante DiPasquale was originally published in the Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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The image of Michael Phelps “swimming” across a Midwestern wheat field toward Vancouver recently raised the ire of the United States Olympic Committee (“USOC”), which characterized the image as “crossing the line.” But is the USOC’s position legally warranted, or is the image nothing more than a lawful and effective ambush marketing campaign?

The following article by Ben Mulcahy was originally published in the Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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On September 9, 2009, a federal judge in Maine agreed with retailers, marketers, and media companies that the recently enacted Maine law "An Act To Prevent Predatory Marketing Practices Against Minors" is likely unconstitutional. Nonetheless, the judge dismissed the challenge to the Act on the ground that the state Attorney General does not intend to enforce it.
 

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The California Supreme Court will hear oral argument on June 3 in an important “right of publicity” case, Christoff v. Nestle USA Inc. Issues include whether the single publication rule applicable to mass communication-based torts applies to right of publicity claims; whether use of another’s likeness on a product label is a “publication” for purposes of the rule; whether its continuing use on product labels and in various product advertisements constitutes a “republication” for each use giving rise to new causes of action and whether the discovery rule applies to right of publicity claims.

The following article by Guylyn Cummins was originally published in the Los Angeles Daily Journal.  To read the article please click here, or visit the Los Angeles Daily Journal website.

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The Advertising and entertainment industries have merged.  While product placement  and brand sponsorship have been features of entertainment programs since the early days of radio, the efforts to integrate brands and brand messages into entertainment programming during the past few years have become more systematic and sophisticated than ever before.

This article by Ben Mulcahy was originally published in the Los Angeles Lawyer. To read the article please click here, or visit the Los Angeles Lawyer website.

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