In April 2018, the Federal Trade Commission (“FTC”) wrote to Florida-based Teami LLC (“Teami”), a Florida-based producer of Teami tea and skincare products, reminding it of the requirement set forth in the FTC’s Endorsement Guides, that any material connections, including compensation, between advertisers and internet end-users need to be disclosed “clearly and conspicuously” to consumers. The letter noted that endorsers should use unambiguous language and consumers should be able to notice the disclosure easily without having to look for it; and that because consumers viewing posts in their Instagram feeds typically see only the first few lines of a larger post unless they click “more,” endorsers should decide any material connection above the name look. Continue Reading
As COVID-19 lockdowns continue to restrict in-person production, advertisers are increasingly turning to digital technologies to produce new creative assets. Recently, there has been increased interest in using “deepfake” technologies to repurpose archival footage. A “deepfake” is essentially a video or audio that has been manipulated in a way that is undetectable to people viewing or listening, resulting in a piece of media that appears authentic. Continue Reading
Enter for a chance to win! Advertising lawyers are forever reminding their clients to be clear that when a promotion is a sweepstakes, messaging needs to be clear that it is a random drawing and not a giveaway. Recently, fashion brand Draper James reminded us all why that distinction is so important. Continue Reading
Around 311 million people in the United States—roughly nine out of ten Americans—are under instructions to “Stay Home!”
These captive audiences have resulted in a 17% increase in TV viewership across all demographics. Indeed, adults aged 18-34—a demographic that has been increasingly difficult for advertisers to reach on ad-supported television—spent 83 million more hours watching TV during the first week of the lockdown as compared to the last week in February. Continue Reading
On Wednesday, amid growing concern over the spread of Coronavirus Disease 2019 (“COVID-19” or “coronavirus”), the Italian government announced that all sporting events in Italy will resume. The catch? They will all take place behind closed doors—no spectators will be allowed to attend for at least the next month.
Italy, as the epicenter of Europe’s coronavirus outbreak, previously undertook drastic measures to slow the virus’ spread—closing all schools in the country, cancelling sporting events, and instituting bans on other public gatherings across the country.
While the epidemic has not yet reached similar proportions in the US, the virus’ spread has also not shown any sign of slowing down. Could similar measures be taken in the US? If so, what does this mean for event organizers and brand sponsors?
Brands pay big bucks—in some cases hundreds of millions of dollars—to sponsor high profile sporting, entertainment, and cultural events. What are the repercussions if event organizers are forced to cancel sponsored events because of the coronavirus outbreak? Does the analysis change if the events go on as scheduled, but spectators are banned from attending?
With the continuing spread of the Coronavirus Disease 2019 (“COVID-19” or “coronavirus”), retailers are sure to face a number of issues that they can and should prepare for. The primary issues facing retailers will likely be supply chain issues, covered here (The Impact of Coronavirus on Supply Chain), and employment issues, covered here (What Employers Need to Know to Prepare for Coronavirus). This post addresses certain pricing and advertising issues that may also arise as a result of the spread of coronavirus. Continue Reading
On February 12, 2020, the Federal Trade Commission (“FTC”) announced that it had voted 5‑0 to approve a proposed Federal Register Notice, seeking comment on whether to make changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“the Endorsement Guides”), which were enacted in 1980 and amended in 2009, as part of a systematic review of all current FTC rules and practices. The FTC’s Endorsement Guides have evolved over the past forty years from regulating celebrity endorsements and testimonial advertisements to policing social media advertising, including influencer endorsements and native advertising. The Endorsement Guides have steadfastly required transparency in advertising and that, if there is a connection between an endorser and the maker of a product being advertised or promoted which, if disclosed, might affect the weight or credibility of the endorsement, such connection must be disclosed clearly and conspicuously. In the proposed notice, the FTC requested comment on a variety of questions, including the following: Continue Reading
On November 5, 2019, the United States Federal Trade Commission (“FTC”) issued a guide entitled “Disclosures 101 for Social Media Influencers” and a video “Do you endorse things on social media?” to alert influencers to the laws governing endorsement or recommendation of products or services and provide social media influencers with “tips on when and how to make good disclosures.” The FTC’s written guide states that “[a]s an influencer, it’s your responsibility to make these disclosures, to be familiar with the Endorsement Guides, and to comply with laws against deceptive ads.” The guide explains to influencers that disclosures must be made when an influencer has a “material connection,” that is “any financial, employment, personal, a family relationship with a brand” and that receiving “free or discounted products or other perks” requires a disclosure. In addition, the FTC notes that “tags, likes, pins, and similar ways of showing you like a brand or product are endorsements.” The FTC guide also instructs influencers that “[i]f posting from abroad, U.S. law applies if it’s reasonably foreseeable that the post will affect U.S. consumers. Foreign laws might also apply.” The FTC notes that disclosures must be in simple and clear language that is placed “so it’s hard to miss” and should be placed with the endorsement itself. Disclosures that “appear only on an ABOUT ME or profile page, at the end of posts or videos, or anywhere that requires a person to click MORE” will not be sufficient. The FTC gave the following guidance with regard to endorsement posts in photographs, video and live streaming: Continue Reading
Sunday Riley launched her skincare firm Sunday Riley Modern Skincare, LLC (“SRMS”) in 2009 and its skincare products, including Good Genes, Power Couple, U.F.O., C.E.O., Luna and Tidal, have enjoyed tremendous success, having been featured, promoted, and sold online through Sephora and its website, www. Sephora.com. On October 21, 2019, the Federal Trade Commission (“FTC”) announced a consent order in an action for violation of Section 5 of the FTC Act against Ms. Riley and SRMS for posting false reviews of its Sunday Riley products and falsely representing that the false reviews reflected the opinions of ordinary customers of the products. The FTC’s proposed continuing consent order provides: (1) Riley and SRMS are prohibited from misrepresenting the status of any endorser or person providing a review of a product, including misrepresenting that an endorser or reviewer is an independent or ordinary user of the product; (2) Riley and SRMS are required to clearly disclose any unexpected material connection between SRMS and anyone reviewing a product; (3) Riley and SRMS are required to instruct employees, officers and agents as to their responsibilities for disclosing their connections to SRMS and any Sunday Riley product they endorse and that SRMS obtain signed acknowledgments from any endorser; and (4) Riley and SRMS are required to submit compliance reports to the FTC within one‑year of the order and to create records for twenty years and retain them for five years. Continue Reading
We previously wrote about California Senate Bill 206, the “Fair Pay to Play Act,” back in April, and now Gov. Gavin Newsom has signed that bill into law. The law becomes effective on January 1, 2023. After numerous revisions to the bill since our last post, here is a quick look at the final product.
The new Fair Pay to Play Act allows California student-athletes to earn compensation from licensing their name and image and to obtain professional representation by lawyers and agents to assist with that effort, all without losing scholarship eligibility or amateur status under the National Collegiate Athletics Association’s (NCAA) Division I and II eligibility criteria. Importantly, the law specifically prohibits colleges, athletic associations and intercollegiate conferences from paying such compensation to prospective student-athletes. Continue Reading