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Online Marketing & Advertising Law

Clarifying the $25 Million Threshold in the Final CCPA Regulations

by David Klein

On August 14, 2020, the Office of Administrative Law (“OAL”) approved the California Department of Justice’s final California Consumer Privacy Act (“CCPA”) regulations and filed them with the California Secretary of State. Prior to approval, some businesses were uncertain as to whether the $25 million revenue threshold was related to revenue generated only from California State sales, California residents, or total global revenues. The California Attorney General’s Office has since clarified that limiting the threshold to revenue generated only in California or from California State residents would be inconsistent with the intended broad reach of the CCPA regulations. 

What businesses are regulated by CCPA Regulations?

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New Jersey to Allow Student Athlete Marketing

by David Klein

On September 15, 2020, New Jersey Governor Phil Murphy signed the New Jersey Fair Pay Act (the “Law”) into law, which grants collegiate athletes in the State the ability to profit from the use of their names, images, and likenesses. New Jersey is the latest in a wave of states making major changes to athlete marketing rules that apply to their respective colleges and universities. The Law provides colleges and universities with a lot of time to adjust their practices, as it will not apply to athlete marketing agreements until “the fifth academic year following its enactment.”

What does the new Law do?

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FTC Obtains $10M Settlement for Negative Option Marketing

by David Klein

On September 1, 2020, Age of Learning Inc., d/b/a ABCmouse (“ABCmouse”), agreed to pay $10 million to settle an enforcement action brought by the Federal Trade Commission (“FTC”) for engaging in alleged illegal marketing and billing practices. According to the FTC, ABCmouse, which operates a membership-based online learning tool for children, enrolled unsuspecting consumers in negative option marketing programs without their consent by failing to inform parents that their subscriptions would renew automatically.  

What did the FTC allege?

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The Importance of Accurate PPE Marketing

by David Klein

On August 4, 2020, the Federal Trade Commission (“FTC”) filed suit against three online merchandisers for misrepresenting to consumers that they could quickly ship personal protective equipment (“PPE”) featured for sale on their websites. The lawsuits are a reminder of how important truthful PPE marketing is in order to gain consumer trust and avoid costly FTC investigations. 

How can businesses comply with PPE marketing regulations?

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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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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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Businesses Continue to Violate PPE Advertising Regulations

by David Klein

As the Covid-19 pandemic swept across the world, businesses rushed to satisfy the demand for personal protective equipment (“PPE”). The intention was often noble, but sometimes it was opportunistic, and some PPE advertising toed the line of legality. As a result, the U.S. Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”) began investigating businesses that made deceptive or scientifically unsupported PPE claims. Since March 6, 2020, the FDA and FTC have issued sixty-four (64) joint warning letters to businesses that may have violated federal law in their PPE advertising. Given the foregoing risk, businesses must be aware of relevant FDA and FTC regulations before bringing PPE products to market. 

What are the FDA and FTC guidelines for PPE advertising?

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