On January 25, 2021, President Joe Biden issued an Executive Order entitled “Ensuring the Future is Made in America by All of America’s Workers,” which directs a broad review and strengthening of governmental procurement and financial assistance policies and regulations which require or provide a preference for goods, products or materials produced in the United States.[1]  While US content must be disclosed on automobiles, textile, wool and fur products sold in the US[2] and there is no law which requires a company to disclose the amount of US content or that a product is manufactured in the US, manufacturers and retailers who make claims about the amount of US content in their products must comply with the  “MADE IN USA” Enforcement Policy Statement issued by the Federal Trade Commission (“FTC”).[3]  The Enforcement Policy Statement applies to all products advertised or sold in the US, except those specifically subject to country-of-origin labeling requirements and “MADE IN USA” claims, express and implied, that appear on products and labelling, advertising and promotional materials and other forms of marketing including digital marketing and social media.[4]  In order to make an unqualified claim that a product is “MADE IN USA”, a manufacturer or marketer should have competent and reliable evidence (“a reasonable basis”) to support a claim that the product is “all or virtually all” made in the US.[5]
Continue Reading Seeking to Stop Deceptive ‘MADE IN USA’ Claims, the FTC Takes Action Against Brandnex

Overriding the governor’s veto of H.B. 732 (2020), the Maryland Senate on February 12, 2021 passed the nation’s first state tax on the digital advertising revenues pulled in by large companies. This development follows attempts by various other states like New York to directly regulate digital advertising and ecommerce services in new ways. We took a look at the Maryland bill to find out what advertisers need to know about its details and potential pitfalls.
Continue Reading Maryland Breaks Ground with Digital Advertising Tax

In February 2021, SAG-AFTRA’s National Board voted to approve a new Influencer Agreement.  But, the announcement included few details, leaving many Brands and so-called Influencers to wonder what’s the deal?

To date, SAG-AFTRA has not released the actual long form agreement covering Influencers, but it has posted an Influencer Agreement Fact Sheet online here.  The Fact Sheet makes clear that, for now, the Influencer Agreement is extremely narrow in reach.  Indeed, it all but places the entire onus of documentation, compliance, and pension and health contributions solely on the Influencer.  Therefore, the Influencer Agreement will allow Influencers to earn union eligibility and make their own contributions toward their own benefits.  Here are the key points for Brands and Influencers to be aware of:
Continue Reading Brands And Influencers Need To Know About SAG-AFTRA’s New Influencer Agreement

To date, there are over 1 billion augmented reality (“AR”) users and 171 million virtual reality (“VR”) users worldwide[1], a number that continues to increase as more industries turn to AR and VR to create immersive user experiences. Companies are offering stand-alone experiences that integrate augmented reality and virtual reality at events, such as Samsung and Live Nation’s broadcast of a VR Coldplay concert, as well as through in-store location based applications to encourage a seamless “try before you buy” approach, like Gucci’s AR apparel and accessories try-on app. AR and VR are shaping the future of advertising and influencing our purchasing decisions. As a society with limited attention spans, these immersive experiences may be the answer to cultivating brand awareness and fostering consumer loyalty.
Continue Reading Is it Time to Make AR and VR a Part of Your Reality?

As anyone who has been through a corporate sale process can tell you, there is no such thing as a “standard” M&A transaction.  Every deal is different and presents a unique set of challenges.  This is especially true of transactions involving lead generation companies, which can be very different than businesses in other industries.  Amongst other differences, companies in this space utilize a wide variety of customized commercial arrangements and are subject to numerous industry-specific regulatory requirements that buyers need to be aware of before making an investment in this space.  In this article, we highlight the top 10 issues that buyer should diligence when considering acquiring a lead generation company.  Sellers in this space should focus on eliminating any issues in these areas as well to make them a more attractive acquisition target.
Continue Reading Top 10 Diligence Issues in Lead Generation Mergers and Acquisitions

Tapjoy, Inc. (“Tapjoy”), a mobile advertising company, settled FTC allegations that it failed to provide promised in-game rewards to consumers. Tapjoy operates an advertising platform that works within mobile games and offers in-game virtual currency to users who complete the activities of third-party advertisers (i.e. purchase products, sign up for a free trial, take a survey). Despite hundreds of consumer complaints, Tapjoy failed to deliver on its promises to consumers who earned in-game rewards.
Continue Reading Mobile Advertising Company Gets Flack from FTC for Failure to Deliver Upon Advertised Promises

This article was originally published on Food Navigator on January 13, 2021.

If your company sells any vanilla-flavored food or beverage product, then you are probably aware of the innumerable class action cases that have been filed over the last 18 months attacking these products – 67 cases by our count.  Here, we trace the history of this litigation and the outcomes achieved to date.
Continue Reading The Scoop on All that Vanilla Flavor False Advertising Litigation

This article was originally posted in Food Manufacturing on January 6, 2021.

Despite the COVID-19 pandemic, the number of putative class actions targeting the food and beverage industry increased in 2020 and show no signs of slowing down in 2021. The number of class actions filed against beverage companies in New York increased while the number of cases filed in California decreased. While the Northern District of California, which had become known as the “food court” remained a popular jurisdiction for these suits, filings in New York outpaced those in California. The factual basis of the claims also continues to evolve. Early cases challenged the description of food and beverages as “all natural” when the products contained additives allegedly rendering the “all natural” representation false and misleading.
Continue Reading Food & Beverage False Advertising and Labeling Class Actions: What You Need to Know for 2021

Brands and influencers could unknowingly be violating the FTC’s endorsement rules by using TikTok to promote paid posts and sponsored content without including the necessary disclosures. TikTok offers native direct download and social sharing tools that enable users to share TikTok videos on other social media platforms without the caption and hashtags from the original video description, which may include disclosures that were included as required by the FTC to identify paid advertising.
Continue Reading Native TikTok Tools May Create Liability for Brands and Influencers

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.[1]
Continue Reading FTC Cracks Down On Deceptive Social Media Campaign By Teami LLC