Recently, I co-authored the below advertising alert with Advertising, Marketing & Promotions Partner, Matt Smith.

On the heels of recent high-profile enforcement actions by both the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) against the automobile industry, the New York Attorney General (NYAG) has now zeroed in on the industry as well.

Over this past summer, NY AG Eric Schneiderman settled numerous allegations of deceptive practices with more than 25 automobile dealerships throughout the state, requiring the dealerships to collectively pay over $14 million in restitution and penalties. And Schneiderman has indicated that his office intends to continue monitoring New York auto dealers and will bring more enforcement actions as necessary.

Background

In March 2015, as … Continue Reading

As you know, over the past few weeks, Advertising, Marketing & Promotions Partner Allison Fitzpatrick and I have been discussing the FTC’s updated answers to its FAQs. The following topics will conclude this series: online reviews, employee endorsements, and monitoring.

Online Reviews: According to the FTC, a retail website that includes customer reviews of the products and encourages honest reviews of its products, regardless of whether the reviews are positive or negative, should disclose which reviews were made in connection to free products. Knowing that reviewers received the product they reviewed for free would likely affect the weight the audience gave to the reviews, even if the retailer did not intend for that to happen. In addition, reviewers could fear … Continue Reading

The Federal Trade Commission (FTC) recently updated its answers to a series of frequently asked questions (New FAQs) about its Guides Concerning the Use of Endorsements and Testimonials in Advertising (Guides). The updated FAQs are further proof that endorsements and testimonials are once again on the FTC’s radar, and marketers and their agencies should expect an increase in enforcement over the upcoming months.

This summer, Allison Fitzpatrick, Advertising, Marketing & Promotions Partner, and I co-authored an alert on the FTC’s updated answers to FAQs about endorsement guides. Given the long-awaited guidance, I wanted to share with you its potential impact. In the next coming weeks, I will be addressing the following affected areas: Social Media, Likes, Pins, and Posts, … Continue Reading

As you know, Davis & Gilbert produced our 2014/2015 Lessons Learned Practical Advice document, where our lawyers highlight major developments in the marketing communications industry, and offer tips and best practices for marketers and their agencies in 2015. To view the full 2014/2015 Lessons Learned Practical Advice document, click here. This week, I wanted to share with you the section I co-authored with Matt Smith on environmental marketing.

2014 was another active year for environmental marketing claims, as consumers showed an increasing willingness to change their purchasing behavior based on environmental impact, and regulators made good on their promise to ramp up enforcement. Although the Federal Trade Commission (FTC) sent a strong message to marketers that it takes environmental … Continue Reading

2014 marked a year of significant change in the marketing communications industry.  To help understand these changes, Davis & Gilbert produced our 2014 Lessons Learned/2015 Practical Advice, where our lawyers highlight major developments in the marketing communications industry, and offer tips and best practices for marketers and their agencies in 2015.

Over the next few weeks, I will share with you a few pieces I authored on the topics of: FTC – Regulatory and State, Emerging Hardware – Robots, Drones and Connected Devices, and the NAD. To view the full 2014 Lessons Learned/2015 Practical Advice document, click here.

 FTC – Regulatory and State:

The regulatory landscape in 2014 was marked by a continued focus on the importance of clear, … Continue Reading

Advertising Week has always been an important week to those in the industry, and last week I sat down with Advertising Week’s Executive Director, Matt Scheckner, to talk about this year’s Advertising Week and how it reflects the changing face of the industry.  When discussing Advertising Week’s mission – Matt named education as one of the most important factors, and that’s certainly “The Way I See It.”

For the third year in a row, Davis & Gilbert was honored to sponsor the 2014 Advertising Week annual privacy/data forum, “Mission Impossible IV: Truth and Privacy.” I hosted this forum in NYC, and had the unique opportunity to talk to those who have their finger on the pulse of … Continue Reading

The Federal Trade Commission (FTC) made a number of changes to its regulations and guidelines in 2013.  Specifically, the FTC updated its “.com Disclosures” guide to provide advertisers with more specific instructions for complying with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in various forms of new media. Moreover, the updated guide emphasized that disclosures must be clear and conspicuous on all devices and platforms where consumers may encounter advertisements and clarified methods by which advertisers can implement effective disclosures.  The FTC also announced new mobile privacy guidelines designed to improve the disclosures that appear on mobile platforms and that are used by application developers.

On the privacy side, dozens of state and territory attorneys general filed … Continue Reading

There were significant changes in almost every aspect of the law relating to advertising, marketing and promotions in 2013, and Davis & Gilbert published a piece entitled, “2013 Lessons Learned and 2014 Practical Advice.” This piece explains and discuss what happened, and offer suggestions for advertisers and agencies to think about and address in 2014.

Over the next few weeks, I will share with you a few pieces I authored on the topics of: Environmental marketing, National Advertising Division of the Council of Better Business Bureaus rulings, and the Federal Trade Commission’s changes to its regulations and guidelines in.

Environmental marketing made a significant comeback in 2013. After years of diminished standing during the Great Recession, green issues were again … Continue Reading

We’re all familiar with the classic product demonstrations in television commercials: who hasn’t seen re-enactments of the super-absorbent paper towel, or the dish detergent that cuts through grease with a single drop?

How do we define a demonstration?  Well, a demonstration is just that: a way for advertisers to show the product functioning as it actually would, as objective “proof” of performance.  As such, it is especially important that demonstrations actually consist of a true and accurate portrayal of the product.  When the FTC began bringing enforcement actions concerning advertising demonstrations in 1959, it encountered cases where products or props had been doctored, enhanced or replaced to achieve the desired performance, and the advertiser had not disclosed any modification.  Even … Continue Reading

This week, leading lawyers, legislatures and marketers attended the 35th Annual Brand Activation Association (BAA) Marketing Law Conference in Chicago. At BAA I gave a presentation titled, “Journey to the Center of Advertising Law: Knowledge, Insights, and Practical Tips on The Most Important 2013 Advertising Developments.” Over the next few days, I will share with you three video clips from my presentation. Let’s dive into the first one…

How do we determine “reasonable consumer” behavior?  This is an increasingly important question in a world where the consumer population comprises people with differing views, perspectives, education levels, and experiences.  The “reasonable consumer” is crucial in advertising law:  this person interprets advertising, determines what claims are actually being made, decides whether there … Continue Reading