A. Overview

SECTION A OVERVIEW

 

Recent cases

NAD/BBB decisions to 12/6 (US dating)

Greenwashing? Try greenhushing Katten Sept 22, 2023

Recycling, sustainability and offsetting cases

NARB and SmilePrep and the FTC Sept 27, 2023

Where's the beef? FKK&S/ Lex Oct 6, 2023 re Wendy's 

Fast Food ‘False Advertising’ Deemed Puffery
McDermott Will & Emery. October 13, 2023

Brand Protection & Advertising Law News

Inc. 8 cases. Davis Wright Tremaine Oct 9, 2023

Video Privacy Claims Brought Against Hershey

Squire Patton Boggs/ Lex October 19, 2023

Recent FTC Action on "Made in USA" Claims

Frankfurt Kurnit Klein & Selz. Oct 20, 2023

Brand Protection & Advertising Law News

Inc. 4 cases. Davis Wright Tremaine Oct 25, 2023

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

NAD and Goose Creek from BBB Oct 31, 2023

FKK&S on thoughtfully raised turkeys Nov 11, 2023

Coors Light False Ad Suit Keller & Heckman Nov 8, 2023

* Recommended read

 

RECENT ISSUES/ NEWS

 

FTC Proposes Rule Banning “Junk Fees.” Hunton Andrews Kurth October 13, 2023

FTC proposed rule re consumer reviews and testimonials June 30, 2023

FTC International monthly November 2023

Marketing Campaigns Under Scrutiny for Potential FTC Law Violations
Klein Moynihan Turco LLP. Some helpful analysis of the FTC basics. April 18, 2023 

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

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

 

AI

President Biden signs an Executive Order Oct 30, 2023

Meta Limits on Advertisers' Use of New Generative AI Tools

Frankfurt Kurnit Klein & Selz Nov 7, 2023

AI Deepfake bill. Venable LLP October 19, 2023

The AI UpdateDuane Morris/ Lex. September 18, 2023

Understanding the Intersection of Consumer Protection and Artificial Intelligence

Steptoe/ Mondaq September 6, 2023

FTC Files Complaint on AI-Related Misleading Claims. Mintz/ Lex September 1, 2023

The FTC and the Mere Mention of AI. Keller and Heckman LLP/ Lex August 29, 2023

Claims about digital ownership and creation in the age of generative AI. FTC blog August 16, 2023

Commentary on the above and other FTC/ AI pronouncements from FKK&S August 17, 2023

FTC Warns About "AI and the Engineering of Consumer Trust".FKK&S May 12, 2023

FTC, DOJ, CFPB and EEOC Release Joint Statement on AI. April 25, 2023

 

COMPENDIA, FORECASTS, VADE MECUMS 

 

Top 10 issues for 2023 GALA/ Lex. Feb 23 2023

Venable's Advertising Law Toolkit 2023

USA: What Advertising Law Issues Should You Keep an Eye on in 2023?
Frankfurt Kurnit Klein & Selz PC/ Lex. December 29, 2022

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 obviously business-friendly and the biggest advertising market in the world, it is 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 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.'

 

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 probably 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.

 

Some cases and news

Google's legislative framework to protect children online. October 2023

CARU's "Metaverse Guardrails" Best Practices for Advertising to Children 
Frankfurt Kurnit Klein & Selz PC/ Lex. October 5, 2023

FTC Extends Deadline for Commission Decision on ESRB Application

for New Consent Mechanism Under COPPA. FTC Sept 25, 2023

FTC re 'blurred' advertising to kids. September 14, 2023.

Not entirely supportive commentary from Baker Hostetler here November 10, 2023 

Kids' and teens' online privacy and safety. Baker McKenzie Sept 5, 2023. UK & USA

A Roundup of State Laws Related to Children’s Privacy. Loeb & Loeb August 22, 2023

Amazon/ Alexa $25 Million Penalty for Alleged Violations of COPPA. DoJ July 19

FTC Seeks Comment on New Parental Consent Mechanism Under COPPA

Above July 19, 2023 re “Privacy-Protective Facial Age Estimation” technology

From GALA April 18, 2023. Ad standards are here. CARU ruling here May 12

In 2022, US Congress introduced the Kids Online Safety Act (KOSA)

 

ENVIRONMENTAL CLAIMS

 

Governor Newsom Signs California’s Emissions Disclosure Law

Wilmer Hale/ Lex October 11, 2023 and Fenwick/ Lex here November 1, 2023

The carbon claims pincer movementKatten/ Lex October 4, 2023

New Developments in Environmental Marketing Regulation - Americas

US, Canada, Mexico, Argentina. From IAA and GALA September 2023

NARB Recommends JBS Discontinue “Net Zero” Emissions by 2040

Above from BBB June 20, 2023; more on aspirational claims here from Katten July 13, 2023

Review of FTC's Green Guides consultation*

Helpful discussion of some of the issues. Holland & Knight June 28, 2023 

Filling the Gaps in the Green Guides
BBB National Programs Inc April 20, 2023

 

The FTC's Guides for the Use of Environmental Marketing Claims, aka the 'Green Guides' are from October 2012 and in the process of consultation and update. Helpful commentary and guidance on the issue from Orick Herrick and Sutcliffe/ Lex here March 1, 2023 and here from Holland and Knight June 29, 2023. 5 Key Takeaways | Bringing Clarity to an ESG Grey Area: Advertising Claims from Kilpatrick Townsend & Stockton LLP October 2022 provides some practical self-help in this tricky territory. Can You Make a "Recyclable" Claim if Recycling Facilities Accept the Product, But Don't Actually Recycle it? is a helpful example from Frankfurt Kurnit Klein & Selz PC August 10, 2022, then countered in October 2022 by What Does "Recyclable" Really Mean? Court's Recent Opinion Diverges From FTC Guidance, that court - 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. The scoop on the poop scoop from GALA August 3, 2023 covers similar issues related to compostability. 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.

Is Farm-Raised Fish "Sustainably Sourced"? from FKK&S September 2022 includes an important discussion on the use of the 'sustainable' term. 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. On ESG reporting, this 2022 Wrap-Up from Beveridge & Diamond PC/ Lex December 2022 covers a number of markets/ regions on this currently highly sensitive issue and to provide a bit of help here is How to Succeed in Environmental Marketing Claims from Sheppard Mullin Richter & Hampton LLP/ Lex March 27, 2023.

 

INFLUENCER/ DISCLOSURE/ ENDORSEMENT

 

 

Some more commentary and rulings 

Updated Endorsement Guides: 10 Key Takeaways. InfoLawGroup LLP

NAD Says Supplement Company Must Add Conspicuous Disclosures June 2023

Routine Wellness 'endorsement' case from BBB/NAD March 14, 2023

Federal Trade Commission Releases Guidance on Consumer Reviews. Venable LLP/ Lex, October 2022

Getting Disclosures Right: An FTC Focus and Evolving Challenge for Advertisers
BBB National Programs/ Lex. August 2022

The problem with endorsements

BBB National Programmes October, 2022

 

COMPARATIVE 

 

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

Comparative Ads Can Mention Competitors. Gordon Feinblatt LLC/ Lex. June 1, 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

Demonstrations and Humor in Comparative Advertising

Frankfurt Kurnit Klein & Selz PC; November 9, 2022

Commercial in debate here (we think); NAD decision here

 

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.

 

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 28, 2023

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

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

This Barilla 'Italy's #1 Brand of Pasta' case from the same firm as immediately above is significant and discusses the 'reasonable consumer' standard that applies in California 

Is it "Made in the USA"? It Depends on Which Law Applies . . . Frankfurt Kurnit Klein & Selz PC; December 2022 and 

Does the FTC's "Made in USA" Standard Apply to Claims That a Product is Made in a Particular State?
Global Advertising Lawyers Alliance (GALA)/ Lex. February 11, 2023

 

CHANNEL/ DATA RULES 

 

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

Google's $93 Million Settlement With California AG

Preiskel Nov 14, 2023. Significant call on geolocation data 

CAN-SPAM: Alive and Well After All These Years

FKK&S August 14, 2023 covers Experian settlement 

2023 Social Media Advertising Landscape: An Update from a Senior FTC Official
Holland & Knight LLP. April 18, 2023. Covers the regulatory ground in social media 

US Digital Advertising Act - A Monumental Shift in 2023? Reed Smith/ Lex. January 2023

Countdown to 2023: Privacy Compliance Checklist for The End of The Year. Kilpatrick Townsend & Stockton LLP. Dec 2022

Above covers new state privacy rules in the US, GPC signals and EU/US data transfers

How does the proposed American Data Privacy and Protection Act compare to the GDPR?
Osborne Clarke August 2022

 

  • 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

‚Äč

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

 

 

 

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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

 

OBA

 

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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