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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

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

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

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

The New York Attorney General’s Charities Bureau recently released “Five Best Practices for Transparent Cause Marketing” which contains general best practices for cause marketing campaigns, including campaigns conducted on social media.  Cause marketing, also known as commercial coventures, is the practice by a for-profit company of donating a portion of the purchase price of an item or service to a charity.  Cause marketing is becoming increasingly popular among companies looking to do good as well as to generate positive publicity for their brand.  Many states regulate cause marketing, however, New York’s Best Practices indicate that greater attention may begin to be focused on campaigns conducted using social media and other newer online platforms for giving.
Continue Reading New York AG Addresses Cause Marketing on Social Media

The Federal Trade Commission recently proposed several updates to the Children’s Online Privacy Protection Act of 1998 (COPPA).

COPPA currently provides that operators of websites and other online services that collect personal information online about children under 13, or whose websites or services are directed at children under 13, must:Continue Reading FTC Proposes Updates to Children’s Online Privacy Law

Pinterest has seen its number of daily visitors increase by 145 percent since the beginning of 2012, now counting 11 million users on its site, according to recent reports. It is a powerful social media tool by any standard, however, in recent months, with its meteoric rise, concerns have also surfaced about potential copyright issues. Needless to say, companies are clamoring to gain access to this vast and ever increasing pool of users, but they should (and can) proceed with caution in order to stay on the right side of the copyright issues.
Continue Reading Companies Using Pinterest, Be Careful Not to Get Pricked

“Sticks and stones may break my bones, but words will never hurt me.” Think again. No one wants their reputation, the name of their business, or their products dragged through the mud on the Internet. There are now web specialists called “online reputation managers,” who claim to manipulate Internet search results so the negative links will appear further down the list of results, and hopefully be missed. The lead story in the New York Times, Sunday Styles Section (April 3, 2011), “Erasing The Digital Past,” describes a few companies in this business, and their fee structures which can average from $5,000 to $10,000 a month for high level executives or celebrities, to $120 to $600 a year for run of the mill cases.
Continue Reading Before You Hire That Online Reputation Manager, Consider Your Legal Alternatives

It is now cliché to say that social media activity by companies is growing exponentially. Companies, hospitals, non-profits, the armed services, insurance companies…. every type of entity can be found on social networking sites with Facebook fan pages and Twitter accounts. The marketing opportunities for companies continue to manifest themselves with directed marketing campaigns, discounts on Foursquare and other location based networking sites, and data mining to analyze social networking activities.
Continue Reading Why Social Media Activity May Mean Updating Your Insurance Coverage

The preliminary Staff Report issued by the FTC earlier this month is the most aggressive effort by the FTC to date on the issue of online and mobile privacy generally. The preliminary Staff Report proposes a “do not track” mechanism along with an overall online privacy framework that would rigidly regulate how information is collected both online and through mobile devices, how it can be used, and how it must be stored. Deviating from the distinction between “personally-identifiable information” and “non-personally-identifiable information” that has formed the foundation for other privacy regulations and legislation, the framework proposed in the preliminary Staff Report maintains that such dichotomy is no longer relevant. Because this is arguably a profound change in the existing state of regulation in this area, the preliminary Staff Report is being circulated for comment before it becomes final. This article provides a basic outline of the proposed framework for those who may not already be familiar with the preliminary Staff Report.
Continue Reading The Federal Trade Commission’s Proposed Framework For Consumer Privacy Protection – The Basics

Brands have life cycles and the brands that create a credible emotional connection with the consumer are likely to be able to demand higher consideration and maintain brand loyalty. One must consider what legal protections to employ and which pitfalls to avoid in building a strong and evolving brand in light of the key trends for branding in the New Millennium.
Continue Reading How to Legally Protect Your Brand in the New Millennium