A. Overview

SECTION A OVERVIEW

 

Recent cases (slimmed)

NAD/BBB decisions to 4/12/24 (US dating) Latest cases Shein,  LiveGood, Fenty, Hismile, ShizanSun

Venable/ Lex on Amyris/ NAD here March 18, 2024

BakerHostetler on MIU Stihl claims Feb 27, 2024

And Venable March 13, 2024 re disclosures

Recent FTC Action on "Made in USA" Claims

Frankfurt Kurnit Klein & Selz. Oct 20, 2023

Same MIU issue from Venable LLP Dec 11, 2023

More MIU from FTC Kubota take $2mil hit. Jan 26, 2024

Court Rejects Carbon Offset Class Action v Etsy
Covington & Burling LLP/Lex October 25, 2023

FTC/Influencers, Pepsi 'nuisance' case, Rx sugar

Evian and 'carbon neutral'. Loeb & Loeb Jan 16, 2024

NAD and No.1 claims Baker Hostetler Feb 1, 2024

NYAG and JBS Foods Katten March 4, 2024*

DAAP, CARU & Azerion's agame BBB Mar 5, 2024

Flushable disclaimers FKK&S March 27, 2024

Court Dismisses Greenwashing Action v Nike
Katten Muchin Rosenman/ Lex April 3, 2024

FKK&S on MIU and FTC April 9, 2024

And MIU and NAD and Stihl same date 

* Recommended read

 

RECENT ISSUES/ NEWS

 

On the weed in NY

FKK&S April 5, 2024

Is the US about to do the unthinkable? *

Politico on new federal privacy law April 10, 2024

10th Advertising Law Symposium Highlights

Venable/ Lex March 27, 2024

SEC's Climate Disclosure Final Rule
Brownstein Hyatt Farber Schreck March 7, 2024

Re above, see SEC stays rules Ropes & Gray April 5, 2024

Executive Order to Protect Americans’ Sensitive Personal Data

Above from the WH Feb 28, 2024

FTC International monthly March 2024

 

AI

NAD Following FTC's Footsteps in AI Regulation
Katten Muchin Rosenman/ Lex April 3, 2024

FTC's New Impersonation Rule

FKK&S April 1, 2024

FTC: New Protections for AI Impersonation of Individuals

Above from the FTC Feb 15, 2024. GALA here Feb 15

Meta Announces AI Content Identification for FB, Insta, Threads

Morrison and Foerster February 6, 2024

A general introduction to Artificial Intelligence Law in USA
The Cantellus Group/ Lex January 3, 2024

President Biden signs an Executive Order Oct 30, 2023

 

COMPENDIA, FORECASTS, VADE MECUMS 

 

Venables' Advertising Law Toolkit Feb 2024*

Comprehensive and comprehensible 

Key Priorities for 2024. InfoLawGroup LLP. Jan 10, 2024

Top Sustainability Trends to Watch in 2024

Wilmer Hale Feb 20, 2024

What Advertising Law Issues Should You Prioritize in 2024?
Frankfurt Kurnit Klein & Selz. Dec 26, 2023

NAD's 2022 Annual Report: Advertising Compliance Roadmap 

Squire Patton Boggs/ Lex March 20, 2023. Privacy, disclosures, children

 

IN SUM

 

If you're reading this through 'international' eyes, i.e. you have some experience of other countries' advertising regulatory systems, we think it's fair to suggest - broadly and somewhat simplistically speaking -  that if there's a line that separates self-regulation on the one hand and legislation on the other as the principal influences in advertising's oversight, then the U.S. system sits on or around that line, rather as Germany does, whereas many other European countries fall primarily into the self-regulatory 'camp'. In other words, both regulatory mechanisms are important and influential and both need to be understood, but in the case of the biggest (in terms of household spending) consumer market in the world there are inevitably some complexities arising from a) the federal system, which means, in the idiom, a bunch of state laws that are often the first to be activated in the event of a dispute b) the highly significant role of the Federal Trade Commission which somewhat 'looms' above all other players and c) the generally more litigious environment in U.S. commerce. So, while the U.S. is generally business-friendly, it's also a place where you need to keep your wits and lawyers around you.

 

PRINCIPAL LEGISLATION 

 

There are three main pieces of federal legislation that govern marketing and advertising issues:

 

I. The Lanham Act. First in force on July 5, 1947. This is the federal statute that governs trademarks, service marks, and unfair competition. Also known as the Trademark Act and the emphasis is in that legal territory. The act is in four chapters: 1) The principal register, i.e. the main register of trademarks held by by the US  Patent and Trademark Office 2) the supplemental register, which are trademarks that don't yet qualify for the principal register 3) general provisions and 4) the Madrid Protocol, the principal system for the registration of trademarks in multiple jurisdictions. For our purposes the key clauses are under Section 43a, now known as 15 U.S.C. §§ 1124–1125, extracted is 'any person who...(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. The Wikipedia entry is here and  9 Key Questions About Lanham Act False Advertising Suits, courtesy of Kramer Levin Naftalis & Frankel/ ALM, is helpful.

 

 

II. The FTC Act. You can find the act itself here and its purpose and background here; the key section for our purposes is S5, which prohibits 'unfair or deceptive acts or practices in or affecting commerce.' Such terms and their parallel state counterparts regulate e.g. environmental claims in advertising. The advertising/ marketing section of the FTC's business guidance is essential reading as is the Division of Advertising Practices (the division that 'enforces the nation’s “truth-in-advertising” laws, which require advertisers to tell the truth and to back up their claims with reliable, objective evidence') and Competition and Consumer Protection Guidance Documents for more specific category-based issues and papers. These are 'administrative interpretations of the statutes and rules administered by the Commission, and they are advisory in nature.'

 

III. The Dodd-Frank consumer protection act, known as the Dodd-Frank but the full title is actually the Wall Street Reform and Consumer Protection act; the consumer protection element is related to 'abusive financial services practices.' The act itself is here and its Wikipedia entry, for those of us who like things as simple as possible, here.

 

 In addition to federal laws, each state has its own unfair competition law to prohibit false and misleading advertising. Examples are California's Unfair Competition Law and False Advertising Law; some explanation and cases here from Klein Moynihan Turco LLP/ Lex March 22, 2023. See also ICLG's Consumer Protection Laws and Regulations 2023 

 

CHILDREN

 

From the FTC business guidance: 'If you advertise directly to children or market kid-related products to their parents, it’s important to comply with truth-in-advertising standards. Check out the FTC's resources about COPPA, the Children’s Online Privacy Protection Act, December 2022 commentary from K&L Gates/ Lex here and an update August 17, 2023 from Taft Stettinius & Hollister LLP here. The FTC also has a special page about food advertising to children and adolescents.' The full FTC children's section, which contains some important advice and reports of FTC activities in this space is here. The FTC highlight the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, developed Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020). The more significant influence in this context, however, is The Children’s Advertising Review Unit of BBB National Programs (CARU), who publish guidelines which are 'widely recognized industry standards.' How is advertising to kids different? (audio July 12, 2023) from BBB National Programs 'discusses the nuances of monitoring this evolving marketplace.' The Children’s Food and Beverage Advertising Initiative (CFBAI) is another of the BBB's national programs; its participants undertake to advertise only products that meet CFBAI’s Uniform Nutrition Criteria - 2021 annual report here. Sitting alongside that programme is the CCAI, the Children’s Confection Advertising Initiative, whose participants publicly commit not to engage in child-directed advertising and not to advertise in elementary schools. A useful summary of issues in this children's rules territory is from Davis+Gilbert/ GALA December 7, 2023. 

 

Some cases, commentary and news

What Every Company Should Know about Child & Teen Privacy in 2024
Venable LLP/ Lex March 15, 2024

KOSA & COPPA Updates. Keller & Heckman/ Lex  March 6, 2024

Federal Children’s Privacy Requirements to Be Updated*

Squire, Patton Boggs Feb 27, 2024

Protecting Kids Online: California, Connecticut and Congress - Part I

Squire, Patton Boggs Feb 27, 2024. Part II here 

U.S. Trends in Protecting Children Online. OGC Feb 13, 2024

NY Bill Unhealthy Food Advertising to Children. Venable Feb 15, 2024

Children’s Online Privacy: History, Debates, Legislative Developments

Keller and Heckman/ Lex Feb 1, 2024

Explainer: COPPA Rule Proposed Changes; BBB Jan 3, 2024

 

ENVIRONMENTAL CLAIMS

 

Court Dismisses Textile Greenwashing Class Action Against Nike
Katten Muchin Rosenman/ Lex April 3, 2024

NYAG and JBS Foods Katten March 4, 2024

KPMG survey finds companies plan to increase spending on ESG

Significant perspective on activity. Cooley Feb 22, 2024

Europe Approves New Directive For All Companies Active In The EU Market

Above from Finnegan February 12, 2024 re 'EmPco'

Going green? Update on legal and regulatory environment Venable Dec 14, 2023

CA Voluntary Carbon Market Disclosure Act. Update here FKK&S Dec 8, 2023

 

The legislation most frequently engaged in what is busy legal territory is Section 5 of the FTC Act, or its state counterparts. The core related (non-binding, but frequentlyreferenced in actions) guidance is FTC's Guides for the Use of Environmental Marketing Claims, aka the 'Green Guides', which are from October 2012 and in the process of consultation and update. Helpful commentary and guidance on the issue here from Holland and Knight June 29, 2023. Can You Make a "Recyclable" Claim if Recycling Facilities Accept the Product, But Don't Actually Recycle it? linked here is a helpful example from Frankfurt Kurnit Klein & Selz August 10, 2022, then countered in October 2022 by What Does "Recyclable" Really Mean? Court's Recent Opinion Diverges From FTC Guidance, the Northern District of Illinois holding that 'recyclable' does not require an understanding of the ability to recycle, just whether the product can be. Some consistency from the Northern District of California over a potential class action lawsuit against Coke's 100% recyclable claims (courtesy of GALA July 31, 2023) and an ongoing case against Colgate reported by Davis Wright Tremaine September 14, 2023 and more recently FKK&S commentary Feb 11, 2024. Back to California: New California Law Requires Disclosures When Making Certain Environmental Claims from Frankfurt Kurnit Klein & Selz/ Lex October 20, 2023 relates to 'net zero' or 'carbon neutral' claims and the supporting information that must be carried on websites from January 1, 2024. See update above and Making Green Claims? Keep in Mind New State Laws from Venable/ Lex Feb 5, 2024. California's October 2021 SB343 bill re environmental advertising and criteria for recycling claims, including the use of the chasing arrows' symbol, is supported in January 2024 by CalRecycle's 'material characterization study' - commentary and access to the study here from GALA. Is Farm-Raised Fish "Sustainably Sourced"? from FKK&S September 2022 includes an important discussion on the use of the 'sustainable' term and New Court Decision Regarding "Carbon Neutral" Advertising from Loeb & Loeb Jan 16, 2024 is in similarly sensitive territory and potentially deep water for Evian; GALA commentary here and Morgan, Lewis & Bockius perspective here Feb 8, 2024.

 

Self-regulation

Self-regulatory measures include a section 36 on environmental and provenance claims, the former of which reads 'Advertisers should avoid broad, unqualified environmental claims such as “green,” or “eco-friendly.” Other claims such as “degradable,” “recycled,” and “non-toxic,” should only be used when substantiated and properly qualified. See relevant Weiman cleaning products 'eco-friendly' and 'non-toxic' claims case here March 15, 2023 from BBB. Environmental certifications and seals of approval may be used if properly issued. Additional disclosures are needed if not issued by an independent third-party. Click here for specifics

 

INFLUENCER/ DISCLOSURE/ ENDORSEMENT

 

 

Some more commentary and rulings 

Can a Disclaimer Explain What You Mean by "Flushable"?
Frankfurt Kurnit Klein & Selz/ Lex March 27, 2024

Updated Endorsement Guides: 10 Key Takeaways. InfoLawGroup LLP

10 Mistakes in Endorsement, Collaboration, and Influencer Marketing Activities
Vorys Sater Seymour and Pease LLP Feb 7, 2024

 

COMPARATIVE/ DENIGRATION

 

The BBB Advertising Code, set out in our following content section B, carries a number of rules related to comparisons, especially articles 2-5 and 12, 13 on price issues and articles 27 on superiority claims, comparatives, disparagement, 28 on objective superlative claims, and 29: subjective claims – puffery.

 

Some commentary and cases 

Trash Talking Your Competitors: How Far Can You Go?

Trash Talk: Part 2. FKK&S Dec 1 and 5, 2023

NAD and Dr. Squatch. BBB/ NAD December 5, 2023

NAD’s Latest Telecom Denigration Crackdown. Finnegan/ Lex December 1, 2023

Court Downs Comparative Advertising and Copyright Claim, Follows with a Made in USA Chaser*
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP August 16, 2023

Verifiably False Versus Subjective Opinion. McDermott Will & Emery. June 22, 2023

Molson Coors Appeals National Advertising Division Recommendation to Discontinue “Light Beer Shouldn’t Taste Like Water” Claim
BBB National Programs Inc/ Lex. February 23, 2023. And here's the NARB review of appeal April 11, 2023

 

SELF-REGULATION

 

NAD 2023 agenda 19/20 September, Philadelphia

 

There's a robust, well-resourced self-regulatory organisation (SRO), the Better Business Bureau, an independent, non-profit organisation which operates in much the same way as most SROs in Europe, albeit the BBB scope is broader than those; their advertising programmes are here. BBB publish a significant Advertising Code set out in our content section B, but the real action is from their unit The National Advertising Division, widely known as NAD, which 'has become the leading voice in providing guidance for truthful and transparent advertising.' Their database of decisions is under the auspices of BBB National Programs, which provides summaries of all case decisions from the National Advertising Division (NAD), National Advertising Review Board (NARB), Children’s Advertising Review Unit (CARU), Direct Selling Self-Regulatory Council (DSSRC), and Digital Advertising Accountability Program (DAAP). This piece -  Nuts and Bolts of NAD Proceedings from Kilpatrick Townsend & Stockton LLP November 16, 2022 - is a helpful insight to how NAD works.

 

DIVERSITY, EQUITY, INCLUSION AND BELONGING (DEIB)

 

'Diversity washing' is the new greenwashing

Cooley Pubco/ Lex January 23, 2023

Expanding Accountability for DEIB in National Advertising
BBB National Programs Inc. September 2022

 

The above is helpful input to this issue as it includes reference to much of the research and debate around this sensitive topic. The National Advertising Division, part of the BBB's national programmes, has been consulting with regulators around the world including the ASA in the U.K. and 'beginning today, September 19, 2022, NAD joins CARU in holding advertisers accountable for advertising that portrays or encourages misleading and harmful social stereotyping, prejudice, or discrimination.' CARU (the Children's Advertising Review Unit, another of BBB's programmes) has recently begun monitoring child-directed advertising under their (relatively) new guidelines (published August 2021) and in that context now hold advertisers accountable for advertising that portrays or encourages misleading and harmful social stereotyping, prejudice, or discrimination. This Primark case related to gender sterotyping presentation on kids' clothes; this Moose Toys case finds that the advertiser presented both gender and racial stereotyping. NAD’s procedures are now revised to expressly recognise that its responsibility to analyse questions involving the truth or accuracy of national advertising includes “national advertising that is misleading or inaccurate due to its portrayal or encouragement of negative harmful social stereotyping, prejudice, or discrimination.” Commentary from GALA here. Latest NAD case related to Magic Tavern's 'Project Makeover' videogame here, courtesy of BBB July 28, 2023 and Terri Seligman of FKK&S restrained commentary on it here. The advertiser was required to take steps to request removal of ad content from third party unaffiliated websites.

 

PROMOTIONAL

 

This section to be built over coming weeks; ready end Q1 2024. Meanwhile:

Basics of Prize Promotions and Cause-Related Marketing

Presentation by Venable LLP Feb 7, 2024

Advanced Sweepstakes and Promotions
Venable LLP/ Lex March 5, 2024

 

SOME GENERAL LEGAL COMMENTARY

 

Stay ADvised: Brand Protection & Advertising Law News. Davis Wright Tremaine LLP May 4, 2023

Above carries some interesting stuff on review sites, pricing and even NAD processes

In brief: prohibited and controlled advertising in USA. Crowell & Moring LLP/ Lex March 12, 2024

From the same company, same date Misleading advertising in the U.S.A.

Do you have a 'reasonable basis' for your advertising claims?  Frankfurt Kurnit Klein & Selz PC. November 29, 2022

Key Takeaways | Advertising and Marketing. McDermott Will & Emery/ Lex Feb 22, 2023

Covers basic requirements, social media engagement, consumer reviews and promotions 

Advertising & Marketing in the USA Frankfurt Kurnit Klein & Selz April 2019, 2022

 

CHANNEL/ DATA RULES 

 

Is the US about to do the unthinkable? *

Politico on new federal privacy law April 10, 2024

2023 Privacy and Data Security Update

FTC March 28, 2024

Washington's zombie digital rulemaking *

Mark Scott of Politico. Feb 29, 2024

Executive Order to Protect Americans’ Sensitive Personal Data

Above from the WH Feb 28, 2024

CAN-SPAM and State Email Marketing Laws

Klein Monihan Turco Feb 28, 2024

FTC Announces Agenda for 2024 PrivacyCon. Feb 27, 2024
Annual event on wide range of privacy, data security research online on March 6

New Jersey joins 12 other states that passed privacy laws.

GALA January 18, 2024

 

  • Unsolicited commercial electronic messages (including SMS) are prohibited under the Telephone Consumer Protection Act (TCPA). Further, the CAN-SPAM Act imposes certain restrictions on unsolicited email messages. Note: the FCC plans to codify its updated guidance on the TCPA. Proposed rule here
  • The TCPA requires express written consent that the consumer opts in to the SMS marketing campaign. The TCPA requires a business to provide certain information to the consumer in the text: a description of the campaign; the approximate number of messages the consumer will receive (such as once per day or twice a month); instructions on how to opt out from the campaign; instructions on how to get help information; and where to find the full terms and conditions of the business’s privacy policy.
  • The CAN-SPAM Act regulates all commercial emails, defined as ‘any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service’, and includes email that promotes content on commercial websites. It restricts businesses from using false information to open multiple email accounts, transmitting unsolicited commercial emails through open relays, falsifying header information, using deceptive subject lines and harvesting email addresses. Additionally, a business must provide the following information in the commercial email: accurate header information and subject lines; notice of the right to opt out; a functional opt-out procedure; the business’s physical address; notice that the message is an advertisement; and warning labels for sexually explicit content
  • FTC Charges Experian with Spamming Consumers Who Signed Up for Company Accounts with Marketing Emails They Couldn’t Opt Out Of. August 14, 2023
  • The self-regulatory data protection body is the Digital Advertising Accountability Program, one of BBB's national programs, developed to support the Digital Advertising Alliance. The DAA principles are here and the February 2024 case re Indeed and Glassdoor written up here.

‚Äč

Above bullets courtesy of Crowell & Moring LLP March 28, 2023, except the reference to the FCC update, which is from the venerable Venable LLP July 28, 2023 and the final bullets from the FTC and BBB.

 

 

 

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Read more

B. Content Rules

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below

 

 

1. SELF-REGULATION 

 

  • Pricing
  • Other promotional techniques
  • Warranties, layouts, astersisks, abbreviations
  • Qualifications, conditions
  • Comparative and subjective claims 
  • Testimonials and endorsements 
  • Games of Chance and competitions 
  • Environmental and provenance claims
  • Native 

 

2. LEGISLATION

 

 

SELF-REGULATION

 

BBB Code of Advertising - Summary
 

Each section of the BBB Code of Advertising is summarized here to help you select the parts of the Code that apply to your specific situations. Please click at the end of a paragraph to access the entire section in detail or click here to go directly to the full text version

 

1.   Basic Principles of the Code

 

Advertisements should be truthful, sincere offers to sell. Advertisers have a responsibility to have substantiation for all claims made and should be able to provide that substantiation upon request.  All advertising that may mislead or deceive consumers should be avoided. Click here for specifics.
 

PRICING

 

2.   Comparative Price, Value and Savings Claims

 

When comparing prices to one’s own former selling price, current price of others, list prices, wholesale prices, or to items which are imperfect, it is important to make sure that consumers have all the necessary information to make an informed purchase. In addition, when offering a price match guarantee, the offer should be made in good faith, include all necessary information to take advantage of it and not place an unreasonable burden on the consumer who wants to take advantage of the offer.  Click here for specifics.

 

3.   Comparison with own former selling price

 

When comparisons are made to a former selling price, it must be to a bona fide price that has been offered for a reasonable time. If no sales had been made at that price, the advertiser must be sure that the markup on the higher priced product is similar to other products. Click here for specifics.

 

4.   Comparison with current price of identical products or services sold by others

 

Advertisers must be reasonably certain that the compared to price does not appreciably exceed the price at which substantial sales for the identical product have been made. Click here for specifics.

 

5.   Comparison with current price of comparable products or services sold by the advertiser or by others

 

Advertisers must be reasonably certain that the compared to price does not appreciably exceed the price at which substantial sales for the comparable product have been made. Click here for specifics.

 

6.   List Prices

 

List prices comparisons may mislead the consumer where they are not to a price at which substantial sales of the product have occurred. An advertiser can use a list-price non-deceptively where it does not claim a savings, and includes certain disclosures. Click here for specifics.

 

 

OTHER PROMOTIONAL TECHNIQUES

 

7.   Imperfects, Irregulars and Seconds

 

A price comparison to an imperfect product must include a clear disclosure, among others, that such comparison applies to the price of the product if perfect. Click here for specifics.

 

8.   "Factory to you," "factory direct," "wholesaler," "wholesale price"

 

Such phrases are appropriate under certain circumstances. For example, the phrase “factory to you” can be used where the advertiser actually makes the product. The phrase “wholesale price” can be used if that price is comparable to the price charged by wholesalers. Click here for specifics.

 

9.   Sales

 

Retailers can advertise “sales” where they are offering a significant reduction in price for a limited period of time. At the end of the sale period, retailers can, in good faith, convert the sale price to a new regular price if they no longer claim a savings. Click here for specifics.

 

10.  "Emergency" or "Distress" sales

 

Emergency sales must be for a limited period of time, and only include products that are affected by the emergency. The reason given for the sale must be true. Advertisers stating they are closing out a particular product can do so where the advertiser will no longer carry that product. Click here for specifics.

 

11.  "Up to" price savings claims

 

When advertising, for example, savings of "up to 40%," at least 10% of the items must be available at 40% off. Advertisers may want to include a disclosure of both the minimum and maximum savings available to provide more information to consumers. Click here for specifics.

 

12.  Lowest Prices, Underselling claims

 

Advertisers should avoid making unqualified lowest prices claims. One appropriate qualification is to promise truthfully that the advertiser will meet or beat a lower price sold by others. Click here for specifics.

 

13.  Price equalling, meeting competitors' prices

 

When advertisers offer a price match guarantee, the offer should be made in good faith, include all necessary information to take advantage of it, and not place unreasonable burdens on the consumer who wants to take advantage of the offer. Click here for specifics.

 

14.  Free

 

Use of the word free includes a requirement, among others, that the “free” item actually is free. When offered with the purchase of another item, the free item should not be paid for by an increase in the regular price of the other item. Click here for specifics.

 

15.  Trade-in Allowances

 

If an advertiser offers to accept a trade-in when a consumer purchases an item, the advertiser must disclose all terms for the offer clearly and conspicuously. Click here for specifics.

 

16.  Credit

 

Offering credit to consumers comes with numerous requirements which must be met. In addition, if promising “easy credit,” or “guaranteed financing” or like terms, the consumer should receive what is promised. Click here for specifics.

 

17.  Extra Charges

 

To avoid confusion, the existence of any extra charges (such as delivery, assembly, postage and handling, etc.) should be clearly and conspicuously disclosed in an advertisement in immediate conjunction with the price. Click here for specifics.

 

18.  Negative Option Plans, Continuity Plans and Automatic Shipments

 

Advertisements for a product or service that include an offer to sell consumers additional goods or services under a negative option should disclose all material terms of the negative option. Advertisers should avoid making vague or unnecessarily long disclosures that might include contradictory language.  Click here for specifics.

 

19.  Bait Advertising and Selling

 

A “bait” offer is one where the advertiser does not intend to sell the product, but instead to lure the consumer in to switch them to another product, usually at a higher price. Advertisers should avoid such offers. Click here for specifics.

 

WARRANTIES, LAYOUT, *** AND ETC.

 

20.  Warranties or Guarantees

 

When using the term “warranty” or “guarantee” the advertiser should clearly and conspicuously include a statement that the complete details of the warranty can be seen prior to the sale which could include putting it on the seller’s website. Advertisers should disclose any material limitations on a "satisfaction guarantee" or "money back guarantee" and define, for consumers, the meaning of claims such as "lifetime guarantee." Click here for specifics.

 

21.  Layout and Illustrations

 

The illustrations and overall layout of advertising should enhance the consumer's understanding of the offers and accurately represent the featured products and services. Click here for specifics.

 

22.  Asterisks

 

Asterisks can be used to provide additional information about the product or service. However, they should not be used to contradict or change the meaning of the original claim. Click here for specifics.

 

23.  Abbreviations

 

Only commonly known abbreviations should be used in advertising. Click here for specifics.

 

 

QUALIFICATIONS, CONDITIONS

 

24.  Use or Condition Disclosures

 

Terms including “used,” “secondhand,” “rebuilt,” “reconditioned,” “as-is,” etc. have specific meaning. Advertisers should use them only in those circumstances and with appropriate disclosures. Click here for specifics.

 

25.  "As-Is"

 

Advertisers must disclose clearly whenever they offer a product “as is.” Click here for specifics.

 

26.  "Discontinued”

 

Advertisers must not describe products as “discontinued,” or by similar words unless the manufacturer has discontinued the product, or the retailer will discontinue offering it after clearing existing inventories. Click here for specifics.

 

COMPARATIVE AND SUBJECTIVE CLAIMS

 

27.  Superiority Claims – Comparatives – Disparagement

 

Deceptively or falsely disparaging advertising of a competitor’s products or services must not be used.  Comparisons should fairly reflect all aspects of the products or services equally. Click here for specifics.

 

28.  Objective Superlative Claims

 

Claims that relate to tangible qualities and performance values of a product or service can be used when the advertiser has substantiation. An example of a claim requiring substantiation would be "#1 car sales in the city." Click here for specifics.

 

29.  Subjective Claims – Puffery

 

Expressions of opinion or intangible qualities of a product or service do not need to be substantiated.  Such claims include “we try harder” or “best food in the world.” Click here for specifics.

 

TESTIMONIALS 

 

30.  Testimonials and Endorsements

 

Advertisers should ensure that testimonials and endorsement are not misleading and represent the current opinion of the endorser. A consumer endorser’s experience should reflect what users generally achieve, unless there is a clear and conspicuous disclosure of what the expected results will be.   Advertisers should not include claims in testimonials that they themselves cannot make and support.  Click here for specifics.

 

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31.  Rebates

 

Rebates are payments of money after the sale. Advertisers should clearly and conspicuously state the before-rebate cost as well as the amount of the rebate and include key terms that consumers need to know. Click here for specifics.

 

32.  Business Name or Trade Style

 

Business names or trade styles should not contain words that would mislead the public. Words like “factory” or “wholesaler” should only be used under appropriate circumstances. Click here for specifics.

 

COMPETITIONS AND GAMES OF CHANCE 

 

33.  Contests and Games of Chance or Skill

 

Advertisers should publish clear, complete and concise contest rules and provide competent impartial judges to determine the winners. Contests that include the three elements of prize, chance and consideration (payment) are considered lotteries in violation of state and federal laws. Canadian law contains similar prohibitions. Click here for specifics.

 

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34.  Claimed Results

 

Claims relating to performance and results should be backed up by reliable evidence. Click here for specifics.

 

35.  Unassembled Products

 

Advertisers should disclose when merchandise requires partial or complete assembly by the consumer, e.g., "unassembled," "partial assembly required." Click here for specifics.

 

ENVIRONMENTAL AND PROVENANCE CLAIMS

 

36.  Environmental Benefit Claims

 

Advertisers should avoid broad, unqualified environmental claims such as “green,” or “eco-friendly.”  Other claims such as “degradable,” “recycled,” and “non-toxic,” should only be used when substantiated and properly qualified.  Environmental Certifications and seals of approval may be used if properly issued.  Additional disclosures are needed if not issued by an independent third-party. Click here for specifics.

 

37.  “Made in USA” Claims

 

"Made in USA," and similar terms used to describe the origin of a product must be truthful and substantiated. In general, all or virtually all of the product must be made in the USA. Qualified “Made in USA” claims can made be under certain circumstances and with appropriate disclosures. Click here for specifics.

 

38.   “Product of Canada” and “Made in Canada” Claims

 

“Product of Canada," "Made in Canada" and similar terms used to describe the origin of a product must be truthful and substantiated. To make "Product of Canada” claims, virtually all of the product must be made in Canada. Where goods are partially made in Canada, “Made in Canada” claims can be made if appropriately qualified. Click here for specifics.

 

NATIVE

 

39.  Native Advertising (Deceptively Formatted Advertisements)

 

Native Advertisements are created to resemble the design, style, and functionality of the media in which they are disseminated, which could make it difficult to distinguish between advertising and non-commercial content. Click here for specifics.

 

 

 

2. LEGISLATION

 

 

 

  • The FTC Act is significantly the most important legislation impacting marketing communications in the U.S. You can find the act itself and its purpose and background here. 'Under the law, claims in advertisements must be truthful, cannot be deceptive or unfair, and must be evidence-based. For some specialized products or services, additional rules may apply.'
  • The advertising/ marketing section of the FTC's business guidance is essential reading as is Competition and Consumer Protection Guidance Documents for more specific category-based issues and papers. These are  'administrative interpretations of the statutes and rules administered by the Commission, and they are advisory in nature.' Other relevant federal legislation is 

 

 

  • The Dodd-Frank consumer protection act, known as the Dodd-Frank but the full title is actually the Wall Street Reform and Consumer Protection act; the consumer protection element is related to 'abusive financial services practices.' The act itself is here
  • The Lanham Act. First in force on July 5, 1947. This is the federal statute that governs trademarks, service marks, and unfair competition. Also known as the Trademark Act and the emphasis is in that legal territory. For this context,  the key clauses are under Section 43a, now known as 15 U.S.C. §§ 1124–1125, extracted is 'any person who...(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 

 

 

 

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C. Channel Rules

1. TV/Radio/VOD

2. Cinema/Press/Outdoor

3. Online Commercial Communications

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

2023 Social Media Advertising Landscape: An Update from a Senior FTC Official
Holland & Knight LLP April 18, 2023. References FTC formal guidance and 'tips'

 

OECD Report Highlights Concerns over 'Dark Patterns'. Frankfurt Kurnit Klein & Selz PC/ Lex

This is a helpful explanation of the issue of dark patterns, what they are and why and how they transgress 

4. Cookies & OBA

SECTION C: COOKIES AND OBA

 

Washington's zombie digital rulemaking

Mark Scott of Politico. Feb 29, 2024

Executive Order to Protect Americans’ Sensitive Personal Data

Above from the WH Feb 28, 2024

FTC Announces Agenda for 2024 PrivacyCon. Feb 27, 2024
Annual event on a wide range of privacy and data security research online on March 6

 

OBA

 

The Future Of Behavioral Advertising In Europe And The United States
InfoLawGroup LLP/ Lex. November 20, 2023

 

Some news for financial institutions 

 

CFPB Advertising Rule: New Liability for Digital Marketing “Service Providers”Klein Moynihan Turco LLP August 2022 (related to financial institutions only)

The Consumer Financial Protection Bureau (CFPB) is a U.S. government agency charged with ensuring that consumers are treated fairly by banks, lenders, and other financial institutions. In connection with this directive, the CFPB has turned its attention to financial firms that use targeted advertising to reach consumers. The recently issued CFPB Advertising – interpretive rule – identifies the circumstances in which digital marketing companies may be held accountable for violating federal consumer financial protection laws. According to the CFPB’s Advertising rule, “[d]igital marketers that are involved in the identification or selection of prospective customers or the selection or placement of content to affect consumer behavior are typically service providers for purposes of the law [emphasis added].” Once considered a “service provider,” marketers are then exposed to a new range of potential regulatory liability. 

 

5. Emails & SMS

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

Email Marketing Law and Google’s New Email Delivery Restrictions
Klein Moynihan Turco LLP October 17, 2023

 

CAN-SPAM: Alive and Well After All These Years

FKK&S August 14, 2023 covers Experian settlement 

6. Own Websites & SNS

7. Native Advertising

SECTION C: NATIVE ADVERTISING

 

 

From the Better Business Bureau Advertising Code 

 

 

39. Native Advertising (Deceptively Formatted Advertisements)
Native Advertisements are created to resemble the design, style, and functionality of the media in which they are disseminated, which could make it difficult to distinguish between advertising and non-commercial content. Native ads may appear on a page next to non-advertising content on news or content aggregator sites, social media platforms, or messaging apps. In other instances, native ads are embedded in entertainment programming, such as professionally produced and user-generated videos on social media. In still other instances native ads appear in email, infographics, images, animations, and video games.

39.1 Advertisers must not mislead consumers as to the nature or source of native ads they place, or cause to be placed, in any medium, including social media. This includes native ads or links to native ads that appear to be news or public interest stories, but are actually materials promoting products or services. The more a native ad is similar in format and topic to the non-commercial content on a site, the more likely it is to mislead a consumer and require a disclosure to prevent deception.

39.1.1 In instances where it is not otherwise apparent that the native ad is a paid commercial message, the advertiser must ensure that such material promoting its products and services is clearly and conspicuously3 labeled as a “paid ad,” “paid advertisement,” “sponsored advertising content” or other similar words that state expressly that the material is an advertisement. 

39.1.2 In other circumstances, where an advertiser sponsors content that does not promote its own product or service (e.g., a running shoe company sponsors an article on vacation spots for fitness enthusiasts that does not discuss its product), it should consider including a disclosure such as “sponsored by ___” or “brought to you by ___” to avoid confusion.

39.2 Statements in NATIVE ADS about the performance, efficacy, price, desirability or superiority of the advertiser’s product or service will likely be considered content promoting that product or service.

39.3 Advertisers should maintain disclosures when native ads are republished by others in non-paid search results, social media, email, or other media.

 

 

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8. Telemarketing

9. Direct Postal Mail

10. Event Sponsorship/ Field Marketing

11. Sales Promotion

D. Advice & Clearance

E. Links

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