Unsubstantiated marketing claims that exploit consumer anxiety amid the coronavirus pandemic are a top priority for private class action litigants and federal regulators. In fact, the FTC and FDA have recently issued joint warning letters about express and implied claims on marketing materials that are not supported by competent and reliable scientific … [Read more...]
NY AG Focused on Price Gouging During COVID Outbreak
The New York Office of the Attorney General is actively investigating the advertising or offering for sale of necessary consumer goods at unconscionably excessive prices during the period of market disruption caused by the (COVID-19) outbreak. Necessary consumer goods include sanitizing and disinfecting products used to mitigate the spread of COVID-19. They also include … [Read more...]
FTC’s Assault on Paid-For Rankings, Ratings and Review Websites Continues
The FTC’s Endorsement Guides provide that if there is a “material connection” between an endorser and an advertiser – 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 it is already clear from the context of the communication. A material … [Read more...]
What Digital Marketers Need to Know About Contractual Limitation of Liability Clauses
In one form or another, limitation of liability clauses are almost always in digital marketing contracts. They typically attempt to exclude certain risks that a party deems appropriate, and provide that one party’s liability on a campaign may not exceed a stated cap. When negotiating performance marketing agreements, marketers need to understand the legal significance of … [Read more...]
California’s New Data Broker Registration Law
If compliance with the California Consumer Privacy Act isn’t enough to fill marketers’ compliance plates, California Governor Gavin Newsome has signed a number of proposals to amend the CCPA. One of them requires “data brokers” to register in a directory maintained by the California Attorney General. The amendments are intended to replace or supplement the statutory text of … [Read more...]
Proposed Legislation to Assist Financial Institutions Servicing Marijuana Industry
The Secure and Fair Enforcement Banking Act of 2019 (“SAFE Banking Act”) recently passed the U.S. House of Representatives. The SAFE Banking Act is designed to protect federally-insured financial institutions that provide services to marijuana-related businesses in states where it has been legalized. Should the bill get through the Senate and ultimately be signed by … [Read more...]
CBD Advertising and FTC Enforcement
Since passage of the “Farm Bill” which legalized hemp-derived CBD containing less than 0.3% THC, the Federal Trade Commission has twice issued warning letters to marketers of CBD products. In March 2019, the FTC and U.S. Food and Drug Administration issued warning letters to companies that allegedly made false and unsubstantiated “disease treatment” claims for CBD products. … [Read more...]
TCPA Update: Telemarketer Friendly ATDS and Single Text Rulings
A Florida federal court recently ruled in favor of the defendant when it held that dialing equipment must have the requisite “present capacity” to constitute an ATDS (Brown v. Ocwen Loan Servicing LLC) Here, husband-and-wife plaintiffs claimed that defendant mortgage servicer violated the Telephone Consumer Protection Act because it used an ATDS and an artificial or … [Read more...]
CBD: The FDA and State Attorneys General
Former U.S. Food and Drug Administration Commissioner Scott Gottlieb recent stated that, “the CBD craze is getting out of hand…” Federal law currently permits for the distribution of hemp-derived CBD products that contain 0.3% THC or less to be sold, with certain exceptions. The FDA has indicated that it will be increasing regulations, as well as making recommendation … [Read more...]
Federal Auto Renewal Legislation Proposed
While FTC attorneys continue to focus upon recurring payment issues and aggressively enforce ROSCA compliance, a number of states have recently enacted or supplemental legislation on automatic renewal contracts (e.g., California, North Dakota, Vermont and Washington D.C.). Federal lawmakers may now be getting into the oversight act. Rep. Mark Takano (D-Calif.) recently … [Read more...]
Court Addresses Unconstitutional TCPA Damages and Who Can be Held Liable
A company that managed the ownership rights of a film hired a company to promote and market the film. There were approximately 3.2 million telephone calls made over a short period of time that delivered a prerecorded audio message from former Arkansas Governor Mike Huckabee. The two plaintiffs received two voice messages and subsequently initiated class action … [Read more...]
FTC Attorneys Announce “Back-to-Basics” Advertising and Data Security Workshop
The Federal Trade Commission has announced that, along with its regional partners, it will conduct a public workshop in Atlanta on Thursday, August 15, 2019, on truth-in-advertising basics and data security compliance. Designed for digital advertisers, the ad tech industry and FTC CID attorneys, Green Lights & Red Flags: FTC Rules of the Road for Business will feature … [Read more...]
Federal Court Holds TCPA Plaintiff Did Not Adequately Allege ATDS
In Bader v. Navient Solutions, LLC (N.D. Ill. June 14, 2019), the North District of Illinois dismissed a Telephone Consumer Protection Act (TCPA) plaintiff’s claims on the basis that the complaint did not possesses sufficient facts to plausibly allege the defendant had used an automated telephone dialing system (ATDS), consistent with post-ACA International v. Federal … [Read more...]
TCPA Robocall and State Privacy Legislation Update
The Federal Communications Commission considers the definition of an automatic telephone dialing system (“ATDS”), robocall legislation looms in Congress. The Senate recently passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”). The House of Representatives has now introduced House Bill 3375, proposed legislation that would clarify … [Read more...]
Telephone Consumer Protection Act Update – TCPA
FCC Commissioner Delivers Pro-Telemarketer TCPA Speech - May 2019 FCC Commissioner Michael O’Reilly recently delivered a telemarketer defense-oriented speech at an event in Washington D.C. One of the many issues he addressed was the continuing landslide of frivolous Telephone Consumer Protection Act lawsuits. Commissioner O’Reilly made his opinion clear – the … [Read more...]