The Federal Trade Commission’s (“FTC”) 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. On February 12, 2020, the 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[1] and amended in 2009,[2] as part of a systematic review of all current FTC rules and practices. The Endorsement Guides have steadfastly required transparency in advertising and, if there is a connection between an endorser and the company selling the product or services being advertised or promoted which, if disclosed, might affect the weight or credibility of the endorsement, such connection must be disclosed clearly and conspicuously.…

Continue Reading FTC Finalizes Revisions to the Endorsement Guides, Proposes New Rule for Consumer Reviews and Testimonials and Updates FTC Staff Guidance

Two plaintiffs learned the hard way that not all environmental marketing claims are treated the same. A federal judge in Missouri recently dismissed a proposed class action by the shoppers against H&M over the company’s marketing of its “Conscious Choice” fashion line.…

Continue Reading Lizama et al. v. H&M: A Lesson in Artful Crafting of Green Claims

On June 8, 2023, the Supreme Court in a unanimous decision held that a trademark claim concerning “a squeaky, chewable dog toy designed to look like a bottle of Jack Daniels whiskey” which, as a play on words, turns the words “Jack Daniels” into “Bad Spaniels” and the descriptive phrase “Old No. 7 Brand Tennessee Sour Mash Whiskey” into “The Old No. 2 On Your Tennessee Carpet” does not receive special First Amendment treatment where the accused infringer used the trademarks at issue to designate the source of its own goods and that, with respect to a Lanham Act dilution by tarnishment claim, “[t]he use of a mark does not count as noncommercial just because it parodies, or otherwise comments on, another’s products.”[1]…

Continue Reading Supreme Court Rules “That Dog Don’t Hunt”: Bad Spaniels Toy’s Use of JACK DANIELS Marks is a Poor Parody and Dilution Act Applies

On May 18, 2023, the United States Supreme Court ruled in favor of famed rock photographer Lynn Goldsmith against the Andy Warhol Foundation for the Visual Arts, Inc.’s (AWF),[1] in a long-awaited decision impacting fair use under Section 107(1) of the Copyright Act. The opinion written by Justice Sotomayor, in which Justices Thomas, Alito, Gorsuch, Kavanaugh, Barrett and Jackson joined, held that the “purpose and character” of AWF’s commercial use of Warhol’s portraits of Prince shared the same commercial purpose of the original photograph taken by Ms. Goldsmith and, as a result, did not constitute fair use.[2] The Court’s decision affirmed the ruling of the Second Circuit Court of Appeals, which held that the Warhol work was derivative of the original, and noted that “the new expression may be relevant to whether a copying use has a sufficiently distinct purpose or character” but that factor was not dispositive by itself.[3] The Court found that the Warhol Foundation’s licensing of the Orange Prince to Conde Nast did not have a sufficiently different purpose as the Goldsmith photograph because both were “portraits of Prince used in magazines to illustrate stories about Prince.”[4]…

Continue Reading Supreme Court Finds Warhol’s Commercial Licensing of “Orange Prince” to Vanity Fair Is Not Fair Use and Infringes Goldsmith’s Famed Rock Photo

Retailers and service providers should take note: the Federal Trade Commission (FTC) is increasing its scrutiny of negative option marketing activity to combat unfair or deceptive practices related to subscriptions, memberships and other recurring-payment programs. The FTC issued today a notice of proposed rulemaking as part of its ongoing review of its 1973 Negative Option Rule—one of the primary guides for the FTC’s enforcement focus.…

Continue Reading FTC Increases Scrutiny of Negative Option Marketing

Environmental marketing claims often present something of a Catch-22—companies that are doing actual good for the environment deserve to reap the benefits of their efforts, and consumers deserve to know, while at the same time, heightened scrutiny from the Federal Trade Commission (FTC), the National Advertising Division (NAD), state regulators and the plaintiffs’ bar have made such claims increasingly risky.…

Continue Reading How to Succeed in Environmental Marketing Claims

On August 9, the US District Court of Georgia ruled that the FTC had provided “broad and detailed evidence” for its allegations that a tech company and its CEO engaged in deceptive advertising and unfair fee practices in violation of Section 5 of the FTC Act. The FTC’s 2019 complaint alleged the defendants made deceptive representations to customers and charged hidden, unauthorized fees in connection with the company’s “fuel card” as well as through co-branded cards, to companies in the trucking and commercial fleet industry. The FTC’s factual allegations include the following: …

Continue Reading Court Orders Injunctive Relief Against Tech Company for Deceptive Advertising, Unfair Fee Practices

On August 10, the CFPB issued an interpretive rule stating that digital marketing providers that are involved in the identification or selection of prospective customers or the selection or placement of content to affect consumer engagement including purchase or adoption behavior, are subject to the CFPB’s jurisdiction. The rule ostensibly clarifies the scope of companies that are “service providers” under the Consumer Financial Protection Act (“CFPA”) to include digital marketing providers, and thereby subjecting them to the CFPB’s authority to prohibit unfair, deceptive, abusive acts or practices (UDAAPs). …

Continue Reading CFPB’s New Interpretive Rule Sets Sights on Digital Marketing Vendors

“NFT” was 2021’s word of the year.  This isn’t too surprising—they’re everywhere!  The market cap for NFT transactions jumped from roughly $400 million at the beginning of 2021 to over $7 billion by year’s end.  What’s next and how can brands and other content creators leverage NFTs to bring value?
Continue Reading Thinking of Jumping on the NFT Bandwagon – Are you Prepared?

Last week, Reps. Anna Eshoo (D-CA), Jan Schakowsky (D-IL) and Cory Booker (D-NJ) introduced the Banning Surveillance Advertising Act of 2022, a new bill that seeks to significantly restrict targeted advertising practices. The proposed legislation prohibits “advertising facilitators” (defined as entities who receive consideration for disseminating ads and collect or process personal information in connection with such dissemination) from targeting ads to individuals based on their personal information. In addition, the bill prohibits advertisers from targeting, or using an advertising facilitator to target, ads based on personal information that the advertiser obtained from a third party (i.e., anyone other than the individual to whom such information pertains), or that identifies a person as a member of a protected class. These restrictions also apply to practices that target groups of individuals and groups of connected devices, in addition to an individual person or connected device. …
Continue Reading Proposed Federal Legislation Seeks to Ban Targeted Advertising