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

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 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

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 “Deepfake” Technology: Very Real Marketing Value … and Risks

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 Coronavirus And The Retail Industry: Pricing and Advertising Issues

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.[1] 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 California’s Fair Pay to Play Act: This is Only The First Quarter

Owlet Baby Care, Inc. advertised its “Smart Sock” baby monitor with prominent claims that the monitor offers parents “peace of mind,” and promises that babies will “be ok.” The ad message is qualified by disclaimers that the monitors are not medical devices and cannot be used to prevent or treat health conditions. The National Advertising Division (part of the Council of the Better Business Bureau), however, recently declared these disclaimers insufficient. The NAD was concerned that the advertising could be interpreted as saying the monitor could prevent SIDS or other illnesses.
Continue Reading NAD Recommends Improvements to Baby Monitor Performance Disclosures

California Senate Bill 206,[1] the “Fair Pay to Play Act,” was amended again last month, and is making its way through the legislature under sponsorship by Sen. Nancy Skinner-D and Sen. Steven Bradford-D. If passed, the new law would pave the way for college athletes in California to earn compensation—including a stipend or other financial incentive from the college itself—for licensing their name, image, or likeness. The law would also allow athletes to obtain legal representation in connection with their participation in college sports, all while maintaining scholarship eligibility and amateurism under the National Collegiate Athletics Association’s (NCAA) Division I and II eligibility criteria.[2]
Continue Reading Faces and Names: Modern Issues in Athlete Publicity Licensing