Brian Tengel

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The FCC is going back to the drawing board—and it wants some help. Earlier this week, the Commission announced that it is seeking comments “on several issues related to interpretation and implementation of the Telephone Consumer Protection Act (TCPA), following the recent decision” of the U.S. Court of Appeals for the D.C. Circuit in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018). As we have written previously, in March the D.C. Circuit issued…
When a widespread industry practice comes under regulatory scrutiny, companies that end up in the crosshairs sometimes fall back on the “everyone does it” defense. This argument has an intuitive appeal in the consumer-protection context—consumers are presumably aware of practices that are common across an entire industry, the thinking goes, and they make purchasing decisions with knowledge of these practices. The online ticket reseller StubHub recently tried this approach at NAD. It didn’t go over…
Want to be a trademark lawyer? Well, you might need to have a creative streak. In recent weeks, at least two major brands have used attention-grabbing strategies to protect their trademarks while raising awareness about the unauthorized use of their intellectual property. And these efforts are generating more than a little buzz. The Velcro Companies released a video, “Don’t Say Velcro,” in which an ensemble of dancing, singing trademark attorneys implores consumers not…
As we previously blogged, the National Advertising Division held its 2017 Annual Conference in New York City last week. Kicking off the event was Mary Engle, the FTC’s Associate Director of Advertising Practices, who gave the keynote address on behalf of Tom Pahl, the FTC’s Acting Director of the Bureau of Consumer Protection. Tom has generously been very active in speaking at many industry conferences, but he unfortunately fell ill and had to miss…
By now, anyone who is even a casual reader of our blog should know about the Federal Trade Commission’s (FTC) “Made in USA” requirements. As we have explained elsewhere, the FTC requires that a company’s products be “all or virtually all” manufactured in the United States (as well as “finally processed” domestically) for the company to make a “Made in USA” claim. The four closing letters from this month put at 15 the number…
Whoopsy daisy. Better Life, a maker of home cleaning products, recently ran evocative comparative video ads with a product demonstration to grab consumers’ attention and gain share. It’s a common enough advertising strategy, but one that Better Life in this case should have nipped in the bud, according to NAD. The ads featured a time-lapse demonstration in which gerbera daisies were placed inside Better Life All Purpose Cleaner and in four other household cleaning products,…
As we have written before, mobile apps geared toward health and fitness have become increasingly popular—and an increasingly popular target for regulators. This makes sense. Health and fitness apps can pose a serious risk if consumers rely on them for personal health information that turns out to be inaccurate or misleading. And the risk goes both ways—an app can provide false reassurance that you’re perfectly healthy when you should really be seeing a doctor,…
The plaintiffs’ bar is at it again, this time with a new target—the shipping and handling fees that retailers charge consumers in the course of delivering a product. We may think in the day of Amazon Prime that when we shop on the web the product should arrive at our door for free. But there are obviously costs associated with mailing the items we buy online, costs that don’t exist when we pick up in…
Have you seen an ad like this (we have, more times than we can remember): “Ever walk into a room and forget why? Spend extra time looking for your car keys or purse? Have trouble remembering names or faces?” If the answer is yes, the dietary supplement Prevagen may be just what the doctor ordered. That’s because Prevagen contains the active ingredient apoaequorin, a dietary protein originally derived from a species of jellyfish living in…