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Influencer Law and Contract Disputes

by David Klein

FabFitFun. Inc. (“FabFitFun”), the seasonal beauty box-by-mail company, has sued JFF Entertainment, LLC (“JFF) for breach of contract. In its lawsuit, FabFitFun alleges that JFF never provided the social media endorsements that it had contracted to provide from actors Cara Delevingne, Sarah Hyland, and Ashley Benson. FabFitFun was careful to point out that the lawsuit was brought against JFF and not any of the individual actors named above. In fact, it is reported that two of these actors were never even
made aware of the underlying contract between FabFitFun and JFF. This lawsuit is a good reminder that influencer law involves more than merely complying with the Federal Trade Commission’s (“FTC”) guidelines. Among other considerations, it is important to carefully draft influencer marketing agreements to prevent future lawsuits and regulatory investigation.


What Should be Included in Influencer Marketing Agreements?

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Social Media Influencers and FTC Lawsuits

by David Klein

Social media websites have received an increase in user traffic due to the Covid-19 pandemic. One tried and true way to advertise to users on social media is to get the endorsement of a celebrity or social media “influencer.” Superficially, the process is easy – businesses pay influencers to post endorsements of their goods or services across the influencers’ social media accounts. However, when done incorrectly, businesses and influencers can become the subject of investigations initiated by the Federal Trade Commission (“FTC”). Those investigations can lead to FTC lawsuits that can result in reputational harm and significant fines. 

What are Influencer Marketing Best Practices?

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Refresher Course on California Anti-Spam Law

by David Klein

Recently, much has been written about the newly-enacted California Consumer Privacy Protection Act (“CCPA”). With all the attention (rightfully) being given to the CCPA, we wanted to remind readers that the CCPA is merely one of several consumer privacy laws currently on the books in the state of California. The California Anti-Spam Law, codified at Section 17529 of the California Business and Professions Code, although less discussed, is still a very important statute and can result in large fines for unwary email marketers. 

What does the California Anti-Spam Law Prohibit?

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The Telemarketer’s Guide: Consumer Disclosures

by David Klein

To help you understand how to sell to consumers through telemarketing, while complying with the law, we have created this guide for every telemarketer in order to understand consumer disclosures. The guide introduces the regulations of the Telemarketing Sales Rule.

If you are an advertiser who wants to reach consumers through a telemarketing campaign, you may be focused on how important your first impression will be with each consumer that you contact.

As a part of this first impression, you will need to respect your consumers’ legal rights. The benefits of reaching thousands of consumers efficiently, come with legal requirements meant to protect those consumers from receiving unwanted solicitations.

Beyond getting your marketing message across, your communications must include specific disclosures to protect consumers and avoid engaging in illegal solicitation. Running telemarketing campaigns requires familiarity with telemarketing laws and regulations.

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CCPA 2.0 on California’s November Ballot

by David Klein

Although it feels just like yesterday that the California Consumer Privacy Act (“CCPA”) went into effect (it was January 1, 2020), California may be at it again. After securing 931,000 signatures from California State residents, the privacy-right activist group, Californians for Consumer Privacy, has qualified yet another privacy bill for the November 3, 2020 ballot. The California Privacy Rights Act (“CPRA”), which some are calling CCPA 2.0, would expand the privacy rights of Californians with enforcement set to begin on January 1, 2023.

What is CCPA 2.0?

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Efficacy Claims in Hemp Advertising

by David Klein

The popularity of hemp grew exponentially with the passage of the 2018 Farm Bill (“Farm Bill”). Per the definition section of the Farm Bill, hemp, with a concentration of no more than 0.3% of Tetrahydrocannabinols (“THC”), on a dry weight basis (also known as cannabidiol or “CBD”), was removed from the controlled substances list. As a result, businesses rushed to produce products that include hemp as an ingredient. Hemp products containing more than 0.3% THC continue to be classified as illegal marijuana. Businesses investing in hemp advertising are tempted to boast about the efficacy of their products to consumers. However, before doing so, businesses should get familiar with regulations related to hemp product advertising. 

Are businesses allowed to advertise the efficacy of their hemp products?

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Telemarketing Contracts: Worth Your While Before You Dial?

by David Klein

Communicating with consumers via telephone and text messaging has been a popular tool for businesses for decades.  With the increasing need for social distancing brought on by the Covid-19 pandemic, however, and despite some state restrictions on telemarketing activities during this period of uncertainty, telemarketing has become an even more useful advertising and consumer outreach tool.  Businesses that have obtained the consent necessary to contact consumers via telemarketing can take advantage of this opportunity by entering into a telemarketing contract with call centers and marketing partners capable of assisting with the process.

Telemarketing contracts can be used to cover a variety of telemarketing-related relationships, including contracts with call centers that provide logistical support for a business’s internal campaigns, as well as third party database managers (or list managers) who can contact consumers with third party offers. Notwithstanding the attractiveness of this marketing method, it is crucial that businesses interested in pursuing these types of relationships, whether with list managers or list owners, ensure that the parties negotiate and enter into comprehensive telemarketing contracts that establish each party’s respective obligations, restrictions and standards of conduct.  In doing so, business owners can maximize revenue potential, while properly allocating risk and potential liability.  

Could a Telemarketing Contract Protect My Business?

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Updating TCPA Guidance to Account for Recent Legal Developments

by David Klein

In the last several months, nearly every aspect of the economy has experienced significant upheaval.  The marketing industry has been no exception.  Recent developments have led to substantial changes to what is considered Telephone Consumer Protection Act (“TCPA”) compliance.  As a result, it is important to take stock of certain elemental TCPA guidance tips to stay up to date with the present state of the law. 

What is the current TCPA guidance based on recent legal developments?

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