Behind the Scenes

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

Behind the Scenes
Privacy & Security - US & Abroad
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Join Arent Fox at CyberMaryland@RSA Cybertini

Please join Arent Fox and members of the CyberMaryland community at the CyberMaryland @ RSA Cybertini networking reception during the RSA Conference 2016 in San Francisco. RSA Conference is a major driver of the information security agenda, connecting and education security professionals worldwide. Key topics on the agenda include the realities of data security, bringing cybersecurity into the boardroom, and privacy issues.

Cybertini, organized by the Maryland Department of Commerce, Office of Cyber & Aerospace, is on March 1, 2016 from 4:00-6:00pm in the Marriott Marquis Chill Lounge. To RSVP, click here.

Join the conference conversation. Tag us @ArentFoxBTS and @RSAConference and use #RSAC.

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Privacy & Security - US & Abroad
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The EU-US Privacy Shield: What to Expect Next

On February 2, the potential replacement to the invalidated Safe Harbor data transfer mechanism, the EU-US Privacy Shield, was announced by the European Commission and the US Department of Commerce, as we covered here. However, while organizations and representatives on both sides of the Atlantic welcomed the conclusion of the negotiations on Tuesday, the true substance of the Privacy Shield is yet to come. 

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Privacy & Security - US & Abroad
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Safe Harbor Data Gets a New ‘Privacy Shield’

This morning, the European Commission and US Department of Commerce agreed on a Safe Harbor replacement deal, rebranded as the EU-US Privacy Shield. The deal was first announced via Twitter by EU Justice Commissioner Vera Jourová, then detailed in a press conference in Strasbourg, France.
 
While details of the agreement have not been disclosed, the EU-US Privacy Shield reportedly addresses requirements set out by the European Court of Justice in its ruling on October 6, 2015, which declared the previous framework invalid. In her press conference, Commissioner Jourová emphasized the following three elements of the new deal:

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Privacy & Security - US & Abroad
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What’s the Big Deal with Big Data? New FTC Report Released

What’s the News?

The Federal and Trade Commission recently released a report outlining the benefits and risks involved in using big data. The report, Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues cautions companies against the use of big data in a way that could lead to discrimination, and explains how companies should analyze and use big data in compliance with various consumer protection laws. In particular, FTC Chairwoman Edith Ramirez expressed concerns related to the use of big data in connection with “harmful exclusion or discrimination.” To that end, the FTC Report provides some guidance on how companies can use big data to benefit themselves and society, while minimizing legal and ethical risks.

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Advertising, Promotions, Sweepstakes & Contests
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Deal or No Deal? Class Action Alleges Macy’s Offered Misleading Sale Prices

What’s the News?

Macy’s, Inc. and subsidiary Bloomingdale’s, Inc. were recently served with a class action complaint alleging that the retail chains misled consumers with a “phantom pricing scheme” that inflated the savings available on items marked for sale. According to the complaint, the stores listed artificially high “regular” prices on “sale” items, increasing, by comparison, the savings that consumers believed they were receiving. This is the latest of several recent class action lawsuits attacking retail pricing strategies, and it serves as a reminder to retailers nationwide to be careful when using price comparisons.

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Advertising
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Is It or Isn’t It? FTC Issues Guidance to Companies on Native Advertising

The Federal Trade Commission recently issued its long-anticipated guidance on native advertising. While the policy statement and its related guidance are new, the FTC emphasized that it has been regulating native advertising under Section 5 of the FTC Act since 1967 and that this policy document and guidance is a summary of the principles that it has developed over the years. While the FTC has been regulating native advertisements for decades, the issuance of this guidance indicates that the FTC will be making regulation of native advertising a priority in 2016.
 
Native advertising – as defined by the FTC – is advertising that matches the design, style, and behavior of the digital media in which it is disseminated. The main problem with respect to native advertising arises when the content is formatted in a way that suggests or implies it is not an advertisement.

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Advertising
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Lumos Labs Settles With FTC Over Brain Training Program Claims

The Federal Trade Commission announced this week that Lumos Labs had agreed to settle false and deceptive advertising claims related to the company’s promotion of its “Lumosity” cognitive training programs (commonly referred to as “brain training”). Under the FTC’s Settlement Order, Lumos Labs will pay $2 million in consumer redress and notify its on-line subscribers of the FTC settlement, as well as provide them with directions on how to cancel their Lumosity auto-renewal subscriptions.

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Advertising
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FTC Says Retailers Bamboozled Customers with Misleading “Bamboo” Products

What’s the News?

The Federal Trade Commission has a reached a settlement agreement with several major retailers, including Nordstrom, Bed Bath & Beyond, and JCPenney, over claims that they improperly labeled and advertised rayon products as being made of bamboo. According to the FTC, rayon—a chemically manufactured fiber that is sometimes created from bamboo—is not the same as bamboo, making the companies’ “bamboo” claims improper. In addition to injunctive relief, the companies have agreed to pay over $1 million dollars under the settlement. 

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Media & Entertainment
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“World of Warcraft” Creator Takes Battle to Court over Game’s Characters

What’s the News?

A federal judge in the Northern District of California recently dismissed a complaint in which video game producers claimed that characters from their games had been misappropriated by competing developers, in violation of copyright law. While characters are, in some cases, entitled to copyright protection, the court held that plaintiffs in such cases must state with considerable specificity which characters were allegedly infringed, and why those characters are copyrightable. General allegations of idea theft, the court explained, will not survive a motion to dismiss. 
 

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ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.