Behind the Scenes

Arent Fox's advertising law blog - latest news and trends in advertising, data security & privacy, and fashion & entertainment.

Behind the Scenes
Advertising, Media & Entertainment, Promotions, Sweepstakes & Contests, User-Generated Content
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Proclaiming Your (Lack of) Independence: FTC Issues Final Order Against Company for Failing to Disclose Financial Relationship with Reviewers

What’s the News?

The Federal Trade Commission’s final order against a video game marketing company for not disclosing that online reviews for games were posted by paid reviewers shows that companies (i) should monitor their paid reviewers and influencers for proper disclosures and (ii) have a compliance system in place to deal with those who do not follow a company’s guidelines.

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Advertising, Promotions, Sweepstakes & Contests
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These Prices are Healthy?!: GNC Sued for Alleged Fake Pricing

What’s the News?

A recent lawsuit filed against GNC serves as a reminder that companies need to ensure that prices listed as “regular prices” are substantiated.

Background on the Case

The complaint in a class action recently filed against the nutrition and supplements retailer alleges that GNC deceptively lists items on its website as having a deceptive “regular price” and a substantially lower “sales price.” The regular price is either marked down or grayed out in a manner that makes customers believe the sales price is a substantial discount over the price that the items were formerly sold for (see below for an example of the markdowns contained in the complaint). 
 
The complaint claims that these markdowns are deceptive because the listed regular price is not:

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Advertising, Privacy & Security - US & Abroad
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Pop-Ups Get Political: Publishers May Need to Think Twice Before Detecting Ad Blockers

As publishers turn from print to digital and rely on online ad sales, some websites now prevent readers from viewing content if they have an ad blocker enabled. Alexander Hanff, a privacy activist and CEO of Think Privacy, has launched a campaign to “name and shame” publishers using these methods. The campaign announcement comes days after the European Commission stated in a letter addressed to the activist that ad blockers can be illegal and in breach of EU privacy rules. 

The mechanism to detect ad blockers appears to require access to personal data. The campaign encourages internet users to report websites circumventing ad blockers to prevent publishers from infringing on personal privacy. Hanff says he will bring legal challenges against sites using anti-ad blockers without prompting for user permission.

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Advertising, Privacy & Security - US & Abroad, Promotions, Sweepstakes & Contests, Social Media
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Sarah Bruno and Anthony Lupo to Speak at 2016 Legal & Regulatory Conference

Partners Sarah Bruno and Anthony Lupo will speak on a panel at the 2016 Legal & Regulatory Conference hosted by the Personal Care Products Council. The presentation is titled “Know Every Angle: Advertising, Social Media, Discount or Phantom Pricing, and International Distribution and Privacy.” This interactive panel will examine international distribution challenges and outlet, discount, and phantom pricing while also examining native advertising, social media and the ever-changing privacy landscape. The exchange will focus on recent legal developments and cover industry approaches. The conference is May 4-6, 2016 at the Loews Vanderbilt Hotel in Nashville, Tennessee.

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Privacy & Security - US & Abroad
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Back to the Future: House Moves to Update Email Privacy Law

In a key win for digital privacy advocates, the House unanimously passed the Email Privacy Act yesterday in a 419-0 vote. Supporters, including top Silicon Valley names and privacy groups, now look to the Senate and then President Obama to bring the popular Act to fruition.
 
The bipartisan bill from Reps. Kevin Yoder (R-KS) and Jared Polis (D-CO) would require law enforcement to obtain a warrant to search through emails and other messages that are more than 180 days old. The current legislation governing digital communications, the Electronic Communications Privacy Act, allows police to search through digital archives with just a subpoena or court order. Why 180 days? The technical ability to store information online was much more limited when the current legislation was originally passed. When were these rules drafted? 1986.
 

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Privacy & Security - US & Abroad
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Tennessee Expands Breach Notification Statute

What’s the News?

Data breach notifications may be more common in Tennessee. Notably, the Governor recently signed into law a bill updating the current breach notification requirements by (a) requiring notice even where data is encrypted, (b) requiring notice within 45 days of discovery of the breach (barring a law enforcement hold), and (c) more clearly covering the actions of malicious employees. This change is notable because it requires notification even if the data is encrypted.  It applies to organizations handling Tennessee residents’ data. The new law will take effect July 1, 2016. Given this amendment, all companies should consider any necessary updates to incident response plans.

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Privacy & Security - US & Abroad
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Cracks in Privacy Shield Need to be Filled

On April 13, 2016, the Article 29 Working Party released its opinion on the EU-US Privacy Shield. Having reviewed the draft Privacy Shield documents, which included an adequacy decision and supporting texts, the Working Party has now expressed several concerns with both (a) the ability of the Privacy Shield to adequately protect the rights of Europeans and (b) the inconsistencies and lack of clarity in the drafting of the Privacy Shield.
 

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Advertising, Green Advertising
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Cosmetic Companies Agree to FTC Settlement After Promoting Products as “All Natural”

The Federal Trade Commission announced on April 12 that it reached settlement agreements with four companies that market skin care products, shampoos, and sunscreens online over charges that they falsely claimed that their products are “ALL NATURAL” or “100% NATURAL,” despite the fact that they contain synthetic ingredients. 

The Commission voted unanimously to issue each administrative complaint and to accept the four proposed settlement agreements. The Commission has also issued a complaint against a fifth company, California Naturel, for making similar claims. A copy of the FTC’s press release announcing the settlement agreements can be found here.

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Advertising, E-Commerce
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Winds of Change: Court Grants Summary Judgment for Plaintiff in Website Accessibility ADA Claim

Last September, we published an alert warning retailers of a looming expansion in the reach of Title III of the Americans with Disabilities Act that would impose requirements on e-commerce websites to make themselves more accessible to users with a wide variety of disabilities. While the US Department of Justice has yet to promulgate regulations specifying those requirements, enforcement actions by DOJ and threatened class action lawsuits by a number of plaintiffs’ law firms all point towards the likelihood that retailers' websites will have to meet Level AA of the Web Content Accessibility Guidelines v. 2.0.

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Advertising, Promotions, Sweepstakes & Contests, Social Media
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FTC Targets Retailers Offering Tweets for Pay

Social media disclosures may cause heart palpitations for advertisers and copywriters, but the Federal Trade Commission isn’t backing down. A recent settlement involving Lord & Taylor provides another important reminder that the FTC is scrutinizing social media campaigns and that proper disclosures are required, even if you only have 140 characters to do it in.

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