On Nov. 16, the Federal Trade Commission (FTC) held an open meeting to discuss the FTC’s new “Voice Cloning Challenge” and present public comments on business practices of cloud computing providers in response to the FTC’s request for information (RFI) announced on March 22, 2023. Presented via recording by Sen. Amy Klobuchar (D-Minn.) and Rep. Jan Schakowsky (D-Ill.), the Voice Cloning Challenge beckons innovators to develop solutions capable of discerning between authentic and cloned voices, whereas the Cloud Computing RFI provided a forum for industry perspectives on competition, security ..read more

In addition to legal analysis, legislative developments, and some general whimsy, in this blog we highlight commentary from regulators and industry figures in the advertising law space. We had the opportunity to hear from several such individuals last week at the ANA Masters of Advertising Law Conference. One panel featured the Associate Director of Advertising Practices at the Federal Trade Commission, Serena Viswanathan, and the Vice President for the National Advertising Division of BBB National Programs, Laura Brett. Ms. Viswanathan disclosed as part of the presentation – and we would be r ..read more

When the FTC announced it was doing a workshop focused on children’s digital marketing that would be followed by a Staff Report, I was as giddy as a kid on Halloween. But now I feel like I got more tricked than treated, largely because the Report lays out a fair number of musings without being clear about any shift in the enforcement landscape. For those who want the executive summary, here are the Report’s “recommendations”: (1) Don’t blur ads. (2) Disclose ads orally and in writing. (3) Disclose ads with icons. (4) Educate kids about ads. (5) Platforms should require ad disclosures and allow ..read more

In his State of the Union address this February, President Joe Biden promised to crack down on junk fees. The Federal Trade Commission (FTC) made good on that promise in short order on Oct. 11, announcing a proposed rule to prohibit junk fees. And a few days before, on Oct. 7, California Gov. Gavin Newsom signed a bill that would similarly ban junk fees, further emphasizing the focus on this area from policymakers. The California law goes into effect in July 2024; the next step for the FTC’s proposed rule is a 60-day public comment period. But what exactly is a junk fee? Notably, neither the C ..read more

If we look at recent Supreme Court decisions, the Federal Trade Commission (FTC) has a pretty dismal record, with well-publicized losses in AMG and Axon. At the district court level, however, things are quite different; we come across very few FTC losses. Although there are some recent litigations that are raising questions about the bounds of the FTC Act and other laws that the agency enforces, we are generally seeing courts being at least receptive to many of the theories raised by the agency. (It remains to be seen whether and how all of this will shake out.) But a recent decision from a di ..read more

Fall is in the air, and that means brands are planning holiday promotions. The season of buying is also the season of giving, and Q4 is prime time for brand + charity partnerships and cause marketing campaigns. Often, a for-profit brand – known as the commercial co-venturer (“CCV”) – donates a portion of proceeds from the sale of goods or services to a charitable organization (known as a “charitable sales promotion”). Several states have laws that specifically address CCVs and charitable sales promotions to protect against fraud and help ensure companies carry out the promised benefit. Compani ..read more

I haven’t used the words “shopped,” “purchased,” and “PacSun” in the same sentence for more than a decade. So now, in an existential daze, I’m wondering how I arrived at the “Thanks for shopping PacSun, here is your order confirmation” page. No, I’m not between the ages of 13 and 16. No, I didn’t happen to set foot in my local mall, even though a Cinnabon does sound good. Lastly, yes, I did check my calendar, and we’re definitely still in 2023 and not 2003. As a fashion enthusiast, and even a self-proclaimed “sartorialist,” for me a typical shopping excursion (more so an online shopping binge ..read more

If it feels like it has been ages since you heard about one of the Federal Trade Commission (FTC or Commission) public meetings, well, that’s kind of true. There was a meeting back in July that discussed military consumer protection efforts, but that’s been it. The latest meeting marked the return to some issues that are of significant concern to advertisers. You may recall that back in October 2022, the FTC hosted a workshop titled “Protecting Kids from Stealth Advertising.” We wrote about it here, but the gist of the event was about whether and how the little ones understand the difference b ..read more

We have been so thrilled at the response to our monthly Advertising Law CLE Showcase. We wanted to alert you to a CLE program our colleagues on the Baker Class Action Defense team are hosting on September 19, noon-1:15 pm ET. They do an annual review in January that is a must-attend. I was excited to see them adding an interim one as well. Why wait till January when the class action plaintiffs’ bar never sleeps? So, grab your favorite fall treat and join ..read more

“Hey, how do we contract with a virtual influencer?” – Marketing In-house Legal Friends: If you haven’t received this email yet, you will soon. The use of hyper-realistic virtual influencers to endorse products is no longer fringe; it’s the next chapter of influencer marketing, and the Federal Trade Commission (FTC) wants brands to know the guides apply to all influencers, human and humanoid alike. The FTC’s newly-updated Guides Concerning the Use of Endorsements and Testimonials in Advertising (mercifully nicknamed the “Endorsement Guides”) broadened the definition of “endorser” to include wh ..read more