Ad Law Access : Washington D.C. Advertising Lawyer & Attorney : Kelley Drye & Warren Law Firm : New York, Chicago, Connecticut, New Jersey, Brussels

The news media have taken notice of the increase in advertising lawsuits and formal grievances filed against competitors. This month, The New York Times and The AmLaw Daily reported on the recent up-tick in false advertising challenges.

The New York Times article, “Best Soup Ever? Suits Over Ads Demand Proof” from November 22, 2009, noted that the number of cases appears to have grown as the economy has declined. Kelley Drye & Warren partner, John E. Villafranco, explained, “In this economy, where margins are a bit tighter, a lot of marketing departments have decided to become more aggressive in going after their competitors in the hopes that they can either protect their market position or capture additional market share.”

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On November 17, 2009, Kelley Drye & Warren hosted a seminar and webcast, “Privacy Law Paradigm Shift: Policymakers Respond to Rapidly Evolving Technologies,” addressing new developments in privacy and information security law, regulation, and enforcement. Kelley Drye Partner Tom Cohen, and Of Counsel Jodie Bernstein, opened the seminar with an overview of privacy law and a history of the Federal Trade Commission’s enforcement priorities. Nine experts from the government and private sector spoke during three different panel sessions, The New Privacy Paradigm, Developments in Data Security, and Privacy and New Technologies. This advisory provides an overview of the key take-aways from each panel.

A webcast recording is also available to view online.

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Companies that offer sweepstakes in the United States usually exclude residents of Puerto Rico from participating. In most cases, the decision to exclude residents of Puerto Rico have been driven by the onerous requirements that have been imposed on sweepstakes sponsors in that jurisdiction. For example, Puerto Rico has required sponsors to do the following: (a) translate rules into Spanish; (b) publish rules in newspapers or magazines; and (c) have a notary public certify drawing and game pieces. In addition, the regulations had contained some ambiguities about what activities constituted impermissible consideration.

Effective November 27, 2009, most of the requirements that have led companies to avoid running promotions in Puerto Rico have been eliminated. For example, the new regulations issued by the Puerto Rico Department of Consumer Affairs only require rules to be in Spanish if the sweepstakes is advertised in Spanish. Rules may now be published online, rather than in print, and a notary is not required to certify any aspect of the promotion. In addition, the regulations now limit consideration to include a payment or some other act that financially benefits the sponsor.

These changes make it a lot easier for companies to run sweepstakes in Puerto Rico. Although there may be cases in which a company has to exclude Puerto Rico, most of the legal barriers have been removed.

Click here for a copy of the new regulations.

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