general

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

UK And US Issue Joint Statement On Children's Privacy

Sheppard Mullin November 13, 2024

Marketing to Children (audio) Venable
Ad Law ToolKit Season 2, Episode 7 Nov 12, 2024

New U.S. Privacy & Social Media Safety Laws Impact Advertising Compliance
Kilpatrick October 17, 2024

House Advances Children’s Privacy Bills. Hunton Sept 27, 2024

FTC Concerns over Marketing to Kids - It’s Not Just COPPA Anymore

BakerHostetler July 10, 2024. Important case & debate

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, which developed Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020). See also the FTC's COPPA FAQs. Another significant influence in this context is The Children’s Advertising Review Unit of BBB National Programs (CARU), who publish guidelines which are 'widely recognized industry standards; their Compliance Warning regarding the use of AI in children's advertising and data is here - May 1, 2024. 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

Enhanced Child/ Teen Privacy Laws Should Put Businesses on Alert
Venable LLP/ Lex May 23, 2024

The Evolution of Advertising in the Children’s Space
BBB National Programs. May 14, 2024. Audio

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

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

ENVIRONMENTAL CLAIMS

NY Court Dismisses NYAG's Green Lawsuit v. Pepsi

GALA November 6, 2024

Venables on green claims (podcast) October 25, 2024

Understanding Green Claims in Advertising Loeb & Loeb Oct 3, 2024

New FSIS guidelines on environmental labeling claims

DLA Piper September 19, 2024

Greenwashing Lawsuit against Airline Preempted Under ADA*
Reed Smith/ Lex August 23, 2024

Coca-Cola back in the dock. FKK&S Sept 2, 2024

DLA Piper's Aug 2024 Environmental Advertising Claims Guide includes the US

Green Guides

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 update. Helpful commentary and guidance on the issue here from Holland and Knight June 29, 2023.

Recycling

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. 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. The SEC, whose principal role is to protect investors, recently settled a greenwashing action against Keurig/ Dr. Pepper whose annual reports did not fully disclose recyclabilty aspects of its K-cup pods, as reported here by Proskauer Rose/ Lex September 17, 2024.

Net Zero and sustainability

Voluntary Carbon Markets Joint Policy Statement and Principles. Covington/ Lex commentary here May 31, 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. Is Farm-Raised Fish "Sustainably Sourced"? from FKK&S September 2022 includes an important discussion on the use of the 'sustainable' term (not defined/ described in the Green Guides) 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/ NATIVE

FTC final rule bans fake reviews & testimonials FTC 8/14

Venable on the above here 8/16

FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising

FTC's Endorsement Guides: What People Are Asking

FTC Disclosures 101 for Social Media Influencers

Native New Yorkers and Native Advertising. BakerHostetler/ Lex May 7, 2024; audio 25 mins;
Social Media, Influencers, and Endorsements. Venable/ Lex March 22, 2024; audio 26 mins;
FTC Targets Fake Reviews and Testimonials. Holland & Knight/ Lex. Feb 15, 2024;
FTC Issues Warning Letters for Inadequate Disclosures. Venable Nov 21, 2023; FKK&S November 18, 2023 here includes guidance;
Court Provides Guidance on Social Influencer Advertising in Ethereum Max Crypto Lawsuit. Venable LLP/ Lex June 12, 2023. Important cases with significant rulings on identification issues.*
FTC's Native Advertising: A Guide for Businesses and Enforcement Policy statement On Deceptively Formatted Advertisements. December 2015

Some more commentary, guidance and rulings

FTC fines car cos $10M; calls out influencers and endorsers

Venable LLP/ Lex August 6, 2024

Cameo Multistate Settlement re Endorsements. GALA July 28, 2024

BBB Can you read the fine print? Audio. July 10, 2024

Endorsement Guides - a year later. Hall Render July 17, 2024

Updated Endorsement Guides: 10 Key Takeaways. InfoLawGroup LLP

COMPARATIVE/ DENIGRATION/ BEST

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

Challenging Competitors’ Advertising. Venable April 15, 2024

NAD & Gatorade & BodyArmor Baker Hostetler Feb 14, 2024

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

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

SELF-REGULATORY SYSTEMS

NAD 2024 recap Sept 19, 2024 Baker Hostetler

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 and the same firm's Hot Topics in Advertising Claim Substantiation of April 23, 2024 reports on a session with BBB that focused on NAD processes, sustainability and substantiation testing issues.

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 Q3 2024. Meanwhile:

Olympics Advertising - Don’t be Ambushed by Rule 40

Knobbe Martens July 18, 2024

The FTC Weighs In Again on “Up To” Claims

FKK&S July 9, 2024

When Great Promotion Ideas Go Wrong: The Aftermath

FKK&S May 10, 2024

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

PRICING

Federal Agencies Increase Focus on Pricing Enforcement

Venable September 19, 2024

Drip Pricing, Surcharging, and the Push for “Total Price” Disclosures

Venable LLP May 17, 2024

Planning to advertise a fictitious former price? FKK&S May 15, 2024

California's Price Transparency Law. In force July 1, 2024

Venable's commentary on above May 15, 2024

SOME GENERAL LEGAL COMMENTARY

Q&A: online advertising in USA
Linklaters LLP September 24, 2024

Ad Watchers: The best subject in advertising law: Is it puffery?
BBB National Programs Inc June 5 2024. Audio

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 20, 2022

CHANNEL/ DATA RULES

Email marketing in the crosshairs. Venable Oct 8, 2024 (audio)

FTC Issues Report on Data Practices of Social

Media and Video Streaming Services. Venable Sept 25, 2024

Legal and Privacy Considerations for Targeted Marketing
Wilson Elser September 3, 2024

A new path for Privacy Sandbox on the web July 22, 2024

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 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
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
Q&A: protecting privacy and confidentiality in USA from Gibson Dunn june 10, 2024 is a helpful summary of the broad regulatory framework

Above bullets courtesy of Crowell & Moring LLP March 28, 2023, except the final bullets from the BBB and Gibson Dunn

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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)

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.

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

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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

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.

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

Venable's Ad Law on Telemarketing and Texting

Audio. April 16, 2024

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

SECTION C: NATIVE ADVERTISING

THE FTC

Native Advertising: A guide for Businesses

Enforcement Policy Statement on Deceptively Formatted Advertisements December 2015

Key extract from the Guide (but you should read the whole caboodle)

III. How to make clear and prominent disclosures in native advertising

Disclosures that are necessary to avoid misleading consumers must be presented clearly and prominently. Whether a disclosure of a native ad’s commercial nature meets this standard will be measured by its performance – that is, do consumers recognize the native ad as an ad? Only disclosures that consumers notice, process, and understand can be effective. Inadequate disclosures can’t change the net impression created and won’t stop consumers from being deceived that advertising or promotional messages are something other than ads.
The FTC staff business guidance document .com Disclosures: How to Make Effective Disclosures in Digital Advertising explains what advertisers should do to ensure disclosures in digital advertising are clear and prominent. In general, disclosures should be:

in clear and unambiguous language;
as close as possible to the native ads to which they relate;
in a font and color that’s easy to read;
in a shade that stands out against the background;
for video ads, on the screen long enough to be noticed, read, and understood; and
for audio disclosures, read at a cadence that’s easy for consumers to follow and in words consumers will understand.

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 conspicuously* 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.

* To be clear and conspicuous, such disclosures must, at a minimum, be prominent and visible enough for consumers to readily notice them

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SECTION C: EVENTS/ SPONSORSHIP

Guidelines for advertising in the Olympic & Paralympic Games
Finnegan July 24, 2024

Ring! Ring! Ring! Ring! Ring! It’s the Olympics Calling!

Broadcast Law Blog from David Oxenford July 23, 2024

Olympics Advertising - Don’t be Ambushed by Rule 40

Knobbe Martens July 18, 2024

Reduce

Advertising Rules Worldwide

United States

A. Overview

SECTION A OVERVIEW

B. Content Rules

SECTION B CONTENT RULES

C. Channel Rules

1. TV/Radio/VOD

2. Cinema/Press/Outdoor

3. Online Commercial Communications

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

4. Cookies & OBA

SECTION C: COOKIES AND OBA

5. Emails & SMS

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

6. Own Websites & SNS

7. Native Advertising

SECTION C: NATIVE ADVERTISING

8. Telemarketing

9. Direct Postal Mail

10. Event Sponsorship/ Field Marketing

SECTION C: EVENTS/ SPONSORSHIP

11. Sales Promotion

D. Advice & Clearance

E. Links