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

This post was written by Gonzalo E. Mon and David J. Ervin.

This week, a federal court in New York granted Google’s motion for summary judgment in a landmark copyright infringement case that tested the boundaries of the Digital Millennium Copyright Act (the “DMCA”). In 2006, Viacom filed a $1 billion lawsuit against Google, claiming that tens of thousands of videos on YouTube violated Viacom’s copyrights and that Google should be liable for the infringement. Google moved for summary judgment, arguing that it was entitled to take advantage of the DMCA’s safe harbor provisions. The DMCA essentially holds that a service provider may not be liable for copyright infringement by third parties. A service provider can lose this safe harbor, however, if it has “actual knowledge” that material is infringing or is “aware of facts or circumstances from which infringing activity is apparent” and, having such knowledge or awareness, does not act “expeditiously” to remove the material.

The record demonstrates that Google acted expeditiously to remove specific videos when Viacom notified Google that the videos were infringing. Viacom argued that Google was nevertheless not entitled to take advantage of the safe harbor because Google knew that infringing material was posted on YouTube. The court noted that the critical question was whether the phrases “actual knowledge” that material is infringing, and “facts or circumstances from which the infringing activity is apparent” mean a general awareness of infringement, or mean an actual knowledge of specifically identifiable infringement. The court determined that these phrases “describe knowledge of specific and identifiable infringements of particular individual items. Mere knowledge of the prevalence of such activity in general is not enough.” If a service provider needs to conduct an investigation of facts and circumstances to determine whether material is infringing, those facts and circumstances alone do not constitute knowledge or awareness of infringement.

Although copyright holders may object to be burden of having to identify every instance of infringement on a third party site, companies that work with user-generated content will undoubtedly be happy that they can take advantage of the DMCA safe harbor without having to actively monitor their sites. Nevertheless, these companies must take steps to comply with the DMCA, including setting up a mechanism whereby copyright holder can notify them of infringement and, upon receiving notice of infringement, moving quickly to address the complaints.

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In October 2009, the Federal Trade Commission (“FTC”) introduced a revised version of its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Guides”). Key changes to the Guides include: (1) clarifying that the Guides apply to all advertising messages presented as the opinion or findings of a party other than the advertiser, regardless of the media that is used to disseminate the advertising message (e.g., blog, newspaper, infomercial, “word of mouth” marketing, talk show appearance); (2) elaborating on the types of situations involving new media (e.g., blogs, social networks) where the FTC will likely consider statements to be “advertising messages” sponsored by the advertiser; and (3) recommending that non-typical testimonials be accompanied by a clear and conspicuous disclosure of generally expected results.

On June 23, 2010, the FTC Bureau of Consumer Protection’s Division of Consumer and Business Education posted “The FTC’s Revised Endorsement Guides: What People Are Asking” (the “FAQs”), to help businesses and consumers better understand the FTC’s revisions to the Guides. The FTC’s FAQs address various questions the FTC has received since the revised Guides were introduced in October, including questions about when the revised Guides apply to endorsements in new media, how disclosures regarding a sponsored relationship or typical consumer results should be made, and how the Guides apply to affiliate and network marketing.

See the Kelley Drye client advisory for more details about the FAQs.

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This post was written by Sarah Roller and Megan L. Olsen.

On June 15, 2010, the Dietary Guidelines Advisory Committee issued the “Report of the Dietary Guidelines Advisory Committee on the Dietary Guidelines for Americans, 2010” (“Advisory Report” or “Report”). The Advisory Report is intended to provide the United States Department of Agriculture (USDA) and the Department of Health and Human Services (HHS) “with a strong foundation for preparing the 2010 Dietary Guidelines for Americans,” which will be released at the end of 2010. The Dietary Guidelines, which are jointly issued by USDA and HHS and updated every five years, provide diet-related recommendations for promoting public health, guide Federal food and nutrition policies governing foods served in schools, food assistance and nutrition education programs, and Food and Drug Administration (FDA) regulation of food and dietary supplement products.

The overall theme of the Report focuses on addressing an overweight and obese American population. The Advisory Committee noted “that this report is unprecedented in addressing the obesity epidemic, and stated that the obesity epidemic is the single greatest threat to public health in this century. Every section of the report was developed in a way that addresses the challenges of obesity. [The Committee] noted that this was especially true for children, whose prevalence of obesity has tripled in the past 30 years.”

The 2010 Report includes new chapters focused on a “total diet” approach and integrating the Report’s recommendations and a second chapter translating the scientific findings into practical advice. The “total diet” approach focuses on helping Americans achieve “good health and optimal functionality across their life span,” through a diet that is energy balanced and nutrient-dense. The Report also makes several key recommendations aimed at improving the nutritional quality of the overall “food environment,” particularly for vulnerable populations, including by enabling lower income Americans to gain better access to fresh fruits and vegetables and limiting the access children have to foods that are higher in fat and added sugars. Additionally the report makes several recommendations concerning specific nutrients and food components, including recommendations to decrease intake of solid fat and added sugars, fatty acids and cholesterol, and refined grains. In addition, the report recommends that sodium limits be reduced from 2,300 to 1,500 milligrams/day for U.S. adults, and endorses the recent IOM report recommending that FDA modify the GRAS status of salt to limit sodium in the U.S. food supply.

The Report’s recommendations and anticipated changes to the 2010 Dietary Guidelines are expected to have an impact on food labeling and advertising regulation, especially in light of the Obama Administration’s emphasis on combating obesity and encouraging healthier lifestyles (see our blog post regarding the Obama Administration's Task Force to combat childhood obesity here). Click here for more information regarding the Advisory Report.

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This post was written by Sarah Roller and Katie Bond.

On May 27, 2010, the U.S. District Court for the District of Columbia issued a decision in Alliance for Natural Health U.S. v. Sebelius, Civ. Action No. 09-10470 (ESH) (D.C. Dist. May 27, 2010) ("Natural Health"). Relying on a string of earlier decisions, including Pearson v. Shalala, 164 F.3d 650 (D.C. Cir. 1999) ("Pearson I"), the court ruled that the Food and Drug Administration's ("FDA") refusal to grant several health claims characterizing the disease prevention benefits of selenium consumption violated First Amendment standards that protect freedom of expression in commercial speech. The earlier cases also held that FDA policies restricting the use of health claims in food labeling failed to satisfy First Amendment standards. 

Alliance for Natural Health U.S. v. Sebelius

• "Selenium may reduce the risk of certain cancers. Scientific evidence supporting this claim is convincing but not yet conclusive."
• "Selenium may produce anticarcinogenic effects in the body. Scientific evidence supporting this claim is convincing but not yet conclusive."
• "Selenium may reduce the risk of lung and respiratory tract cancers. Scientific evidence supporting this claim is convincing but not yet conclusive."
•  "Selenium may reduce the risk of colon and digestive tract cancers. Scientific evidence supporting this claim is convincing but not yet conclusive."

Click here to read more on the FDA Ban on Selenium/Cancer Health Claims.
 

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The Consumer Product Safety Commission has announced proposed rules regarding the requirements for a “reasonable testing program” and other certification testing and the requirements for component part testing pursuant to the Consumer Product Safety Improvement Act. Domestic manufacturers and importers of children’s products and other products subject to a CPSC regulation or ban should track the development of the proposed rules and may consider incorporating some of the provisions now, in anticipation of a final rule.

Please view the Kelley Drye client advisory for more details regarding the "15 Month Rule" and component parts testing.

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On May 21, 2010, Virginia Governor Bob McDonnell signed into law a gambling bill that also regulates games, contests, and other promotions. The law provides that companies sponsoring promotions must meet the following requirements: (1) consumers may not be asked to pay any money to participate, other than to purchase a product; (2) consumers must also be able to participate for free; and (3) consumers who play for free must have equal chances of winning as consumers who make a purchase, if applicable.

Companies must make various disclosures in official rules for the promotion, all of which are fairly standard. In addition to the disclosures required in rules, all advertisements for promotions must also include the following disclosures: (1) the name of the sponsor; (2) a statement that no purchase is necessary; (3) the start and end dates; (4) the eligibility requirements; and (5) a disclosure of where the promotion is void.

The law goes into effect July 1, 2010.
 

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On April 27, Visa announced a new rule to expressly restrict online marketers from sharing cardholder information to other companies without the consumer’s knowledge or active consent – a practice referred to as “data pass.” And on May 19, Senate Commerce Committee Chairman, Jay Rockefeller (D-W.Va.), proposed legislation (S. 3386), entitled “The Restore Online Shoppers’ Confidence Act,” which would prohibit companies from enrolling consumers in paid-subscription programs unless the consumers separately provided full payment card numbers to each company presenting an offer and affirmatively agreed to each offer. An article in the most recent BNA Privacy & Security Law Report, “Scrutiny on Payment Card Data Pass: Raising the Profile of Personal Information Sharing Among Marketers,” discusses the new restrictions on payment card data pass, and the areas of risk going forward for companies that continue to engage in the same or similar personal data sharing practices with third parties for marketing purposes when the practice is not clearly disclosed and agreed to by consumers.

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