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

On November 20, 2018, the United States Federal Trade Commission (“FTC”) proposed two FTC consent orders against two Georgia-based companies, Creaxion Corporation (“Creaxion”) and Inside Publications, LLC (“Inside”) and their principals[1] concerning the promotion and advertising of Health Pro Brands, Inc.’s new FIT Organic mosquito repellant during the 2016 Zika virus outbreak and allegations that they had misrepresented paid athletes’ endorsements as independent consumer opinions and commercial advertising as independent journalistic content.[2] The proposed FTC consent orders prohibited Creaxion and Inside from making any false representations in the future and required that they ensure all endorsers disclose all material connections going forward and monitor compliance by any endorsers.
Continue Reading FTC Swats Public Relations Firm and Publisher for Misleading Olympic-Themed Mosquito Repellant Product Endorsements and Native Advertisements

It is no secret that the world of fashion is full of surprises. On Monday, June 4, 2018, Kim Kardashian West won the Council of Fashion Designer of America (“CFDA”) first-time Influencer Award and commented: “I’m kind of shocked I’m winning a fashion award when I’m naked most of the time.”[1] Fashion advertising and marketing rely more and more upon social media and influencers for the ability to connect with consumers in an authentic manner.[2] As a result, fashion models and celebrity influencers are in high demand. Now, a new group of unique model influencers are taking the fashion world by storm. Yet, it is unlikely that any of these new influencers will ever win the CFDA Influencer Award.
Continue Reading Kim Kardashian West Won the First CFDA Influencer Award: Will A CGI Supermodel Be Next?

Sponsorship rights are a critical component of the revenue stream for almost every major venue in the United States. Long-term sponsorship deals not only provide much of the funding for new venues to be built, but they also support the refurbishments that allow existing venues to retain tenants and attract short-term residents, such as concerts, sporting events and tournaments. Sponsorship spending in North America alone came to a staggering $23.1 billion in 2017, an increase from the 2016 figure of $22.3 billion. Most of this sponsorship cash flows to and from venues in major cities. One example out of many is Los Angeles, which is home to a multitude of venues supported by an even wider array of long-term sponsors. Los Angeles recently hosted the 2018 NBA All-Star Game and the 2018 NCAA Men’s Basketball Western Regional Semifinals. The city is now gearing up for additional high profile events, such as the 2020 MLB All-Star Game, Super Bowl LVI and the 2028 Summer Olympics, along with related ancillary events. The Los Angeles market is currently undergoing a period of intense growth, as indicated by the construction of new, state of the art venues, such as the Ram’s stadium at Hollywood Park, the Banc of California Stadium for the LAFC, and (potentially) a new stadium for the Clippers. The abundance of venues both new and old is a clear sign that even more high-profile events will be coming to LA in the years to come. These popular events – both those already scheduled and those yet-to-be-planned – present venue owners with additional hosting opportunities, making it essential to have flexibility in existing long-term sponsorship agreements.
Continue Reading Winning the Gold: Why Venue Owners Need to Consider the Importance of Flexibility in Sponsorship Agreements

Digitally altered images of models have been a controversial advertising issue for decades. In Great Britain, the Advertising Standards Authority Ltd., which is the governing regulatory advertising body, in 2011 banned skincare advertisements featuring digitally altered images because the advertisements exaggerated the effects of the skincare and makeup products and were held to be misleading “per se.”[1] In France, as of October 1, 2017, “it [was] mandatory to use the label ‘retouched photo’ alongside any photo used for commercial purposes where the body of a model has been modified by image-editing software to either slim or flesh out her figure” and any violation might result in a fine of up to €37,500.
Continue Reading Do We Need A Truth In Advertising Act? The Industry and Retailers Self-Regulate Photoshopping Ads

In our previous blog post, “#CAUTION: FTC Ramps Up Enforcement of and Education on Social Media Influencer Disclosure Requirements,” we discussed a recent Federal Trade Commission (the “FTC”) settlement and the FTC’s increased focus on misleading advertising and endorsements on social media platforms.

The complaint, brought by the FTC’s Bureau of Consumer Protection (“BCP”), was against two online gaming influencers, Trevor Martin (a/k/a TmarTn), Thomas Cassell (a/k/a TheSyndicateProject, Tom Syndicate, and Syndicate), and their corporation CSGOLotto, Inc. (“CSGOLotto”).  The BCP alleged that Martin and Cassell (1) did not disclose their ownership in CSGOLotto, (2) were paid to endorse the online platform’s gambling service and (3) asked other gaming influencers to promote the service in exchange for payments between $2,500 and $55,000 without making them disclose such payments. In response to the complaint, neither Martin, Cassell, nor CSGOLotto admitted or denied the allegations, but instead agreed to enter into an Agreement Containing Consent Order with the FTC (the “Order”). The Order prevents them from misrepresenting an endorser of the product or service as an independent user or ordinary consumer of same and requires them to clearly and conspicuously state if the endorsers have a material connection to the product or service.
Continue Reading Paid to Post? #FTCAdvice for Influencers

In 2017, being a “social media influencer” can mean big bucks. Companies are increasingly eager to pay individuals with large social media followings substantial sums to promote products in the hopes of reaching millions of potential customers quickly. And consequently, the Federal Trade Commission (the “FTC”) is paying attention more than ever. If you’re being paid to promote a product on your Instagram account, the FTC wants you to let the world know. . . or else.
Continue Reading #CAUTION: FTC Ramps Up Enforcement of and Education on Social Media Influencer Disclosure Requirements

In response to a petition from a coalition of consumer groups last year complaining about the need for disclosures by social media influencers, the FTC recently announced on April 19, 2017 that it had issued more than ninety letters reminding influencers and brands that “if there is a ‘material connection’ between an endorser and the marketer of a product – in other words, a connection that might affect the weight or credibility that consumers give the endorsement – that connection should be clearly and conspicuously disclosed, unless the connection is already clear from the context of the communication containing the endorsement.” The FTC explained that material connections could “consist of a business or family relationship, monetary payment, or the provision of free products from the endorser.” A copy of the form of the letter, which explains that clear and conspicuous disclosures are required can be found here.
Continue Reading Brands Beware!!!! FTC Scrutinizing Influencer Posts for Compliance with Endorsement Guides

Enforcement of the Digital Advertising Alliance “Application of the Principles of Transparency and Control to Data Used Across Devices” (DAA Cross-Device Principles) officially began on February 1, just a week after the FTC issued a staff report discussing the application of the FTC Online Behavioral Advertising Principles in the context of “Cross Device Tracking” and suggesting that the DAA Cross-Device Principles, while commendable, could be stronger.
Continue Reading FTC / DAA Extend Data Privacy Focus to Cross-Device Tracking