The emergence of online, social media, and mobile advertising has made the outsourcing of marketing efforts important to many businesses. While this approach offers many benefits, businesses must ensure that their advertising agreements contain key provisions that will mitigate certain legal risks. Host Shahin Rothermel talks to Venable partners Bret Siciliano and A.J. Zottola about how these agreements can go wrong, and some best practices that can help businesses avoid risk when outsourcing marketing campaigns.

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The National Advertising Division (NAD) is part of the BBB National Programs. Its mandate is to “hold national advertising across all media types to high standards of truth and accuracy by reviewing truth-in-advertising challenges from business, trade associations, consumers, or on its own initiative.” In 2023, the NAD closed 26% more false advertising cases than the year before. In the second of two episodes digging into false advertising claims, host Shahin Rothermel and her guest, Venable partner Claudia Lewis, discuss how marketers can reduce the risk of a competitor challenge, and what to do if you believe your competitors’ advertising is violating the law.

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The first rule of advertising compliance is that advertising must be truthful and not misleading to consumers. All material advertising claims also have to be substantiated. There are many venues in which a business can challenge a competitor who fails to follow those rules. What are the different ways in which an advertising claim can be false or misleading? In the first of two episodes digging into false advertising claims, host Len Gordon and his guests, Venable partners Roger Colaizzi and Liz Rinehart, discuss the many types of false advertising claims and how to be sure your business can avoid them.

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State privacy laws continue to evolve rapidly, challenging businesses to keep pace. By the end of 2024, businesses will need to comply with up to nine comprehensive state privacy laws, with more laws slated to come into force in 2025 and 2026. To date, all such laws draw inspiration from both the first comprehensive state privacy law—the California Consumer Privacy Act (CCPA)—and the European Union General Data Protection Regulation (GDPR). But there are differences. Host Len Gordon talks to his guest, Venable partner Kelly Bastide, about which laws, if any, apply to your business and developing a practical compliance program that harmonizes with the different laws.

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When marketing to children under 13, there are heightened requirements that go beyond standard truth in advertising practices. The basic idea behind these requirements is that children have a difficult time understanding that they are being given a sales pitch and distinguishing between reality and fantasy. Host Shahin Rothermel and her guests, Venable partner Melissa Steinman and associate Shannon Sansom, discuss some best practices that companies should keep in mind when building promotions and campaigns targeted at children.

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Many customers like to “buy American” and are willing to pay more to do so. However, if you want to call out your product’s homegrown attributes, you should know that the Federal Trade Commission (FTC), as well as some states, including California, have created very specific guidance and laws on what it means for a good to be of domestic origin. Host Len Gordon and his guests, Venable partner Mary Gardner and associate Jay Prapaisilp, look at the FTC’s detailed Made in USA guidance on product manufacture, sourcing, assembly, and labeling, and the penalties for violation.

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Data breaches, cookie banners, chatbots, pixel tracking, and biometrics are just some of the trends in privacy law that are keeping litigators busy. Many technologies that are necessary to operate a website have become hot areas of litigation. But there are more trends, and more questions. Host Shahin Rothermel and her guest, Venable partner Jean-Paul Cart, discuss the states that are considering new consumer protection legislation, what other technologies are being targeted by plaintiffs, and what your business can be doing to be prepared.

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Protecting the environment and practicing social responsibility not only benefit the planet, but also provide a compelling value proposition. The Federal Trade Commission (FTC) has issued detailed guidance for marketers about how to substantiate green claims, and states are increasingly passing laws governing environmental advertising. Host Shahin Rothermel and her guest, Venable partner Claudia Lewis, discuss how marketers can promote the environmentally conscious aspects of their products while avoiding so-called greenwashing.

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In 2023, the Federal Trade Commission (FTC) identified two junk fees-related practices it wanted to regulate—omitting mandatory charges and fees from advertised prices and misrepresenting the nature and purpose of the charges or fees. States have been active as well. “Junk fees” or “drip pricing” would be replaced by the “total price,” which businesses would be required to clearly disclose. Host Len Gordon and his guests, Venable partner Ellen Berge and associate Jay Prapaisilp, discuss the impact bans on drip pricing might have on businesses, and what marketers should be paying attention to as total price laws come into effect.

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For decades, email marketing has been an important tool that businesses use to reach customers. But in recent years, marketers have had to comply with an increasing number of laws enacted to protect a consumer’s privacy and address so-called spam. Host Shahin Rothermel and her guests, Venable partners Ellen Berge and Ari Rothman, discuss what companies should keep in mind as email marketing lawsuits are on the rise.

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Negative option marketing can include pre-notification negative option plans, continuity programs, automatic renewals, and free-to-pay conversions. This marketing strategy continues to invite scrutiny from the Federal Trade Commission (FTC), state attorneys general, and class action plaintiffs. Our episode on this topic was the most popular from Season One, so we’re back with an update. Host Len Gordon and his guests, Venable partners Shahin Rothermel and Ari Rothman, discuss the keys to success in avoiding investigations and liability.

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If your organization is counting on you to identify potentially problematic advertising and marketing practices, or avoid them altogether, you’ve come to the right place. Welcome to Season Two of Venable’s Ad Law Tool Kit Show. Join partners Len Gordon and Shahin Rothermel of our award-winning Advertising and Marketing Law Team as they examine the increasingly complex regulatory landscape. Each week, they’ll dive into a new issue—from made in USA claims to marketing to children—and help build your advertising law tool kit. 

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Telephone and text marketing is ubiquitous these days. But those tools also pose private litigation risks and regulatory hurdles that marketers should be aware of at the outset of any campaign. They involve legal and regulatory complexities, including do-not-call laws enforced by the FTC, FCC, and states. Host Shahin Rothermel and Venable partner Ari Rothman talk about how litigation often concerns consent for autodialed calls and texts. State laws may broaden rules, causing uncertainty regarding reassigned numbers. 

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State attorneys general (AGs) are the chief legal officers of their states, and their areas of concern are vast. Aggressive enforcement against telemarking, debt relief, privacy violations, and charity fraud can generate goodwill with an AG’s state residents. Compliance with laws, prompt complaint resolution, and proactive engagement with AGs are crucial. Host Len Gordon and his guest, former Venable partner Alex Megaris, go over how businesses facing AG inquiries should retain documents, negotiate confidentiality agreements, and focus efforts on smaller AG committees in multi-state actions to manage these probes effectively.

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Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination in public accommodations. But whether it applies to websites differs by location. California exempts online-only businesses, for example, but elsewhere, offering online goods or services can mandate compliance. Host Shahin Rothermel and her guests, Karel Mazanec and Nick Reiter, discuss recent court decisions that provide defenses against generic lawsuits, stressing specific injury claims. The explosion of online commerce has forced the question: How does Title III apply to websites? 

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Maintaining a robust copyright portfolio is crucial for brand owners. Copyright is a universe almost as big as Marvel’s, covering materials from ad copy to music and social media posts. Host Len Gordon and Venable partner Justin Pierce talk about how it's vital to secure ownership rights through agreements, clear third-party content, register copyrights, and have work-for-hire contracts. Staying updated on copyright trends and checking insurance coverage are essential for comprehensive copyright protection.

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Advertisers increasingly view social media as an opportunity to have influencers speak positively about their products and services. But the Federal Trade Commission (FTC) has made it clear that rules regarding disclosure of material connections also apply in the social media context. Host Shahin Rothermel and her guest, Venable partner Melissa Steinman, go over guidelines that include straightforward declarations like "X Company gave me a free product" or hashtags like #ad, emphasizing upfront, noticeable disclosures. Specific rules apply for different content formats, urging companies to monitor and educate employees and third-party implementers to prevent regulatory issues.

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For retailers a key, back-end function you can’t do without is a solid merchant processing relationship to acceptance of payments. Robust merchant processing includes credit/debit card, ACH networks, and auxiliary services like analytics, dispute resolution, and security tools. Given the complex payments ecosystem involving various stakeholders, host Len Gordon and his guests, Venable partners Ellen Berge and Andrew Bigart, walk through the importance for merchants to understand the intricacies of compliance, risk management, security, and fraud prevention.

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When it comes to mitigating class action lawsuits, the best offense is a good defense. There are plenty of steps companies can take to reduce their exposure to class action litigation. Host Shahin Rothermel and guest Venable partner Dan Silverman talk about ways for organizations to minimize class action lawsuit risks by proactively defending against potential litigation. These include conducting thorough advertising reviews, monitoring competitors' practices, adhering to regulatory standards, and focusing on areas susceptible to litigation, such as consumer interactions, billing, data breaches, and marketing claims. 

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The Federal Trade Commission (FTC) is investigating your advertising or marketing practice—not something you ever want to hear. But if your organization has received a civil investigative demand, or CID, what’s next? Host Len Gordon and this week’s guests, Venable partner Roger Colaizzi and former partner Alex Megaris, discuss how adopting a strategic approach is key, as is understanding the FTC staff's pivotal role in case resolution.

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