Category Archives: Advertising

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DirecTV and FTC Face Off in Federal Court Over Deceptive Pricing Claims; FTC Seeking $4 Billion in Equitable Relief

A bench trial began this week to resolve allegations by the FTC that DirecTV misled millions of consumers about the actual costs of its subscriptions.  According to the FTC, DirecTV should be required to pay $3.95 billion dollars to compensate consumers for failing to disclose that it would raise its monthly subscription price after a … Continue Reading

Comparison Pricing Victory for Ross Stores in California

On August 2, 2017, the U.S. District Court for the Central District of California dismissed a putative class action lawsuit against Ross Stores that accused the discount retailer of misleading promotional pricing practices. The lawsuit stemmed from February and May 2015 purchases by the two lead plaintiffs of items bearing price tags with a selling … Continue Reading

Laura Brett Named New Director of NAD

More than a month after the retirement of former NAD Director Andrea Levine, the Advertising Self-Regulatory Council (“ASRC”) has announced NAD’s new Director: Laura Brett. Laura Brett, who has served as NAD’s Assistant Director since 2015, joined NAD in April of 2012. During her five years at NAD, Laura has authored several seminal decisions including … Continue Reading

Missing Ingredient Claims Lead Food Advertising Class Actions So Far in 2017

For the first 28 weeks of 2017, the most frequently alleged claims in new food and beverage false-advertising class actions have related to featured product ingredients that allegedly are absent, or present only in small quantities, in the food at issue. We reviewed news reports and other mentions of newly-filed food advertising class actions for … Continue Reading

Lessons from the World of Trampoline Marketing

Last year, we wrote about an NAD case involving trampoline marketing. The Trampoline Safety website featured reviews designed to help buyers purchase a trampoline. But unless website visitors looked closely at a disclosure at the bottom of the site, they probably wouldn’t have realized that trampolines that had received the highest ratings were made by … Continue Reading

CPSC Acting Chairman Ann Marie Buerkle Emphasizes Collaboration, Balance, and Education

Acting Chairman of the Consumer Product Safety Commission (“CPSC”) Ann Marie Buerkle highlighted her priorities and recent noteworthy developments in a recent newsletter.  She emphasized her desire to collaborate with stakeholders, to take a “balanced and reasonable approach” to regulation when data justifies rulemaking, and to use information campaigns to educate consumers and industry. She shared … Continue Reading

Bill Potentially Impacting “Made in USA” Claims Undergoing Committee Review

The U.S. Senate Committee on Commerce, Science, and Transportation has scheduled a reading this week of the proposed S. 118 Reinforcing American-Made Products Act of 2017.   The bill proposes to amend the Violent Crime Control and Law Enforcement Act of 1994 to require the Federal Trade Commission’s regulation of the labeling of products as “Made … Continue Reading

Judge Upholds FTC Staff Opinion that Avatar Calls are Prerecorded Messages under TSR

Yesterday, a D.C. district court upheld a recent opinion letter issued by FTC staff that extended robocalling restrictions to telemarketing calls that use so-called soundboard technology or “avatars.”  This technology generally allows a live agent to communicate with a call recipient by playing recorded audio snippets instead of using his or her own live voice. … Continue Reading

“Geofencing” and Health-Related Targeted Advertising: Massachusetts AG Has Something to Say

Earlier this month, the Massachusetts Attorney General announced that her office had reached a settlement with a digital advertising company, Copley Advertising, Inc. (Copley), prohibiting the company from using mobile geofencing technology to target women at or near Massachusetts healthcare facilities to infer the health status, medical condition, or medical treatment of an individual. Geofencing … Continue Reading

NY AG Enters Mobile Health App Enforcement Arena with Settlements Targeting Health Claims and Privacy Practices

New York Attorney General Eric Schneiderman recently announced settlements with three mobile health app developers resolving allegations that they made deceptive advertisements and had irresponsible privacy practices. The Attorney General alleged that the developers sold and advertised mobile apps that purported to measure vital signs or other indicators of health using just a smartphone. The … Continue Reading

Oregon Attorney General Announces $545,000 Settlement with Retailer

The Oregon AG recently announced a $545,000 settlement with the Vitamin Shoppe over allegations that the store violated Oregon state law by selling dietary supplements containing ingredients that FDA has deemed unsafe or unlawful. The new settlement agreement places significant burdens on the Vitamin Shoppe to monitor developments on ingredient status. The burdens are the same regardless of whether the … Continue Reading

New Lawsuit Highlights Risks of Using User-Generated Content

In 2014, Anheuser-Busch ran a contest on Facebook in which consumers were invited to submit photos of themselves “acting natural.” The contest rules stated that entrants could only submit their original works, and that the photos could not infringe anyone else’s copyrights, privacy rights, publicity rights, or other rights. Moreover, the rules stated that entrants … Continue Reading

Keeping Up with the Consumer Product Safety Commission: Update on Recent CPSC Developments – 3/29/2017

Register Now for Keeping Up with the Consumer Product Safety Commission: Update on Recent CPSC Developments, the latest in our 2017 Advertising and Privacy Law Webinar Series With the complexity of today’s product safety regulatory environment and the civil penalty amounts for failure to report safety hazards, it is more important than ever for manufacturers and retailers to … Continue Reading

Ad Law News and Views Newsletter

Did you know Kelley Drye’s Advertising Law practice produces a newsletter, Ad Law News and Views, every two weeks to help you stay current on ad law and privacy matters? Click here to access our Publication Sign Up and select Advertising and Marketing to subscribe. Find contents from the latest issue below: Click here to view with … Continue Reading

Not a Passing Grade: FTC Settles with Company Over Alleged False Advertising for High School Diploma Program

On February 3, 2017, the Federal Trade Commission (FTC) announced a new settlement against Stratford Career Institute alleging that Stratford’s advertising for its high school diploma program (claiming that it provided the equivalency of a high school credential) was deceptive and violated Section 5 of the FTC Act.… Continue Reading

CIT Adds New Requirements for ‘Assembled in USA’ Claims Analysis

A recent decision the by the U.S. Court of International Trade (CIT) has important implications for importers, government contractors, and manufacturers that make “Assembled in America” and similar claims. In a ruling against Energizer Battery, Inc., the CIT determined that domestic assembly of foreign component parts does not fulfill the Buy America requirements found in … Continue Reading

FTC Cries Foul On Breathometer Accuracy Claims

The FTC recently announced a settlement with Breathometer, Inc., a company that marketed a smartphone accessory that it claimed could detect blood alcohol levels.  Users could simply plug the accessory into the headphone jack, open the Breathometer app, blow, and receive a reading of their blood alcohol content within five seconds.  Breathometer marketed the products … Continue Reading

FTC Staff Report Details Best Practices for Cross-Device Tracking

The ubiquitous use of multiple devices by consumers has created new opportunities for mobile apps, platforms, providers, and publishers alike to capture more, and more accurate, consumer data.  This practice – known as cross-device tracking – serves many purposes but is particularly valuable to advertisers. On January 23, 2017, FTC staff released a report entitled … Continue Reading

Announcing the Advertising and Privacy Law Webinar Series

Please join Kelley Drye in 2017 for the Advertising and Privacy Law Webinar Series. Like our annual in-person event, this series will provide engaging speakers with extensive experience and knowledge in the fields of advertising, privacy, and consumer protection. These webinars will give key updates and provide practical tips to address issues faced by counsel. … Continue Reading

One Less (Regulator) Affair for AshleyMadison.com: Site Operators Agree to Settle U.S. Charges Stemming from 2015 Breach

Remember the 2015 AshleyMadison.com data breach, where hackers gained access to the personal information of about 36 million users from over 46 countries, and threatened and carried through on their promise to release the information to the public? This highly publicized incident has resulted in a $1.6 million settlement between operators of the dating website … Continue Reading

NAD Decision on Savings Claims Holds Valuable Lessons

The NAD recently issued a decision involving savings claims that holds some valuable lessons for advertisers. Lowes ran TV ads advertising that consumers could get “20% off appliances $396 or more.” Not all appliances in that price range were discounted at 20%, though, and a consumer complained to the NAD, arguing that the retailer had … Continue Reading

Avoiding the Enforcement Crosshairs of Cross-Device Tracking

The Digital Advertising Alliance (DAA) recently announced that enforcement of its guidance on cross-device tracking (the “Application of the DAA Principles of Transparency and Control to Data Used Across Devices”) is set to begin on February 1, 2017. Originally published in November 2015, the guidance was intended to clarify how the DAA’s Core Principles of … Continue Reading

What Covered Entities Should Know About the FTC Act and Their Obligations Beyond HIPAA

The Federal Trade Commission and Department of Health and Human Services Office for Civil Rights (OCR) recently announced the release of new guidance for businesses on the Health Insurance Portability and Accountability Act (HIPAA) and the FTC Act. The resource reminds businesses that their obligations to protect consumer health data do not end with HIPAA, … Continue Reading
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