Ad Law News and Views - May 9, 2020
RECENT NEWS
Anheuser-Busch Wins Big Battle in Corn Syrup Wars
After more than a year of legal battles, the Seventh Circuit handed Anheuser-Busch a decisive victory in a short, five-page opinion. Whether or not an ad is misleading is often complicated and turns a lot on the specific language and context of the ads. Most decisions, then, carefully analyze the ads and consider consumer perception. The Seventh Circuit took a different approach in this instance, noting that “this case is and always has been simple.”
Senate Republicans Release COVID-19 Privacy Bill
In light of concerns associated with attempts to use personal data to track the spread of COVID-19, a group of Republican Senators, led by Mississippi Senator Roger Wicker, introduced the COVID-19 Consumer Protection Data Act of 2020.
Spotlight on Charitable Campaigns
The COVID-19 pandemic has given all of us renewed interest in our communities and giving back to them. Similarly, many companies are teaming up with charitable organizations to support efforts related to COVID-19 through cause marketing campaigns. Cause marketing campaigns can trigger various state laws, like those governing “commercial co-ventures,” particularly when they involve a consumer purchase. This post includes few resources for companies looking to enter into new commercial co-ventures or rekindle previous relationships.
Update: White House Identifies Amazon Foreign Domains as “Notorious Markets” for Counterfeit Goods
On April 29, the Administration’s Office of the United States Trade Representative (USTR) released its 2019 Review of Notorious Markets for Counterfeiting and Piracy (Notorious Markets Review) including Amazon’s marketplace domains in Canada, the U.K., Germany, France, and India. This is the first time that the foreign domains of a U.S.-based e-commerce platform have been included in the USTR’s annual Notorious Markets Review.
TCPA In Jeopardy? US Supreme Court Reviews Constitutionality
On May 6th, the U.S. Supreme Court heard an oral argument in a case concerning the scope of the Telephone Consumer Protection Act (TCPA) that is of great interest to businesses and communications industry practitioners. In William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020) (Barr) the Supreme Court agreed to review a ruling by the Court of Appeals for the Fourth Circuit, which declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the 1991 TCPA. The 2015 amendment exempts calls from the TCPA’s autodialer restriction, if the call relates to the collection of debts guaranteed by the U.S. government. On Wednesday, the Supreme Court will consider if: 1) the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment; and 2) whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
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ON DEMAND CONTENT
We have pulled together a selection of on demand content that we hope you find useful:
Webinars
This year, in conjunction with the launch of the Advertising and Privacy Law Resource Center, we have been holding a series of webinars:
Advertising 101 Webinar
Covering the basics of advertising law:
Regulatory Overview
Claim Substantiation and Puffery
Disclosures
Endorsements and Testimonials
Made in USA Claims
Green Guides
Promotions
Privacy 101 Webinar
Walks through topics such as:
Privacy law 101
Data security and breaches
E-Mail, calls, and text marketing
Influencer 101 Webinar
Covers the legal issues surrounding social media influencers:
Key legal requirements for influencer campaigns
Notable enforcement actions, and what you can learn from them
Practical tips for managing influencers
Pretty Up: Cosmetics False Advertising Litigation Trends and Marketing Compliance Webinar
Topics include:
Class action litigation trends impacting the personal care products industry from year 2019, and our expectations for year 2020;
Beyond food and beverage: an overview of how key terms such as “healthy,” “natural” and “no preservatives” are being used for personal care products;
Advertising risk migration strategies; and
Other practical takeaways
Our Labor and Employment practice presented a two-part series “Getting Back to Work,” to guide employers through the snares of legal, logistical and practical considerations as the nation returns to work.
Part 1 - Preparations and Considerations for Employers
Part 2 - When the Rubber Hits the Road
PODCASTS:
Health Claims in the Context of COVID-19
Answering Retailer Questions Related to COVID-19 Issues
Update on ATDS Definition Under the TCPA
Price Gouging
The Ad Law Access podcast is available now through Apple, Spotify, Google Podcasts, SoundCloud, and wherever you get your podcasts.
ABA SPRING MEETING 2020:
Kelley Drye attorneys took part in the American Bar Association’s Antitrust Section Spring Meeting - this time virtually.
You can rewatch the sessions below:
Briefing with the State Enforcers
What to Expect in FTC CP Enforcement
COVID-19 RESOURCES
In addition to the webinars mentioned above, Kelley Drye is making the following COVID-19 resources available:
KELLEY DRYE’S COVID-19 RESPONSE
Kelley Drye’s COVID-19 Response Resource Center is a dedicated source that provides guidance and addresses questions about legal and business concerns arising from the Coronavirus outbreak. Our priority is to closely monitor and track developments to help you stay informed, so that you can respond to the shifting landscape. To receive Kelley Drye’s updates on COVID-19 legal issues, sign up here.
COVID-19 DAILY WASHINGTON UPDATE
The Washington Update is a daily synopsis of federal government actions related to the COVID-19 pandemic. The synopsis covers actions coming from Congress, the White House and various federal agencies, including the CDC, the Departments of Labor, Health and Human Services, Homeland Security and Treasury/IRS, the Food and Drug Administration and the Federal Trade Commission, among others. You can sign up to receive the daily Washington Update by subscribing to our COVID-19 interest area here. Archived editions of the Washington Update can be found here.
COMMLAW MONITOR
As the COVID-19 pandemic rapidly unfolds, the Federal Communications Commission (FCC) has been active to keep communications services available through various waivers, extensions, and other regulatory relief. Kelley Drye’s Communications Practice Group is tracking these actions and what they mean for communications service providers and their customers. CommLaw Monitor will provide regular updates to its analysis of the latest regulatory and legislative actions impacting your business and the communications industry. Click on the “COVID-19” blog category for previous updates. If you have any urgent questions, please contact your usual Kelley Drye attorney or any member of the Communications Practice Group.