Last week, the Federal Communications Commission (“FCC”) issued a Public Notice seeking comment on a petition for an expedited declaratory ruling relating to how the Telephone Consumer Protection Act (“TCPA”) applies to the use of soundboard or avatar technology. Specifically, the FCC requests comment on whether “calls using recorded audio clips specifically selected and presented by a human operator in real-time, a tool generally referred to as ‘soundboard technology,’ do not deliver a ‘prerecorded message’…

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FTC Opts Out of Canning the CAN-SPAM Rule

By Matthew S. Renick & Ellen T. Berge on February 20, 2019

In June 2017, the FTC initiated a regulatory rule review of the Controlling the Assault of Non-Solicited Pornography and Marketing Rule (“CAN-SPAM Rule” or “Rule”), seeking information about the Rule’s costs and benefits as well as its economic and regulatory impact. The FTC received 92 responses to its request for public comment. Last week, the FTC announced it had completed its review of the Rule and public comments it received, and decided to keep the…

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FTC and FDA Issue Warning Letters to Supplements Companies

By Leonard L. Gordon & Matthew S. Renick on February 14, 2019

Earlier this week, the FTC and the FDA announced a joint effort to combat unsubstantiated health claims in the supplement space. In three warning letters—to Gold Crown Natural Products, TEK Naturals, and Pure Nootropics, LLC (collectively, the “Companies”)—the agencies explain that certain efficacy claims may lack competent and reliable scientific evidence for support. Specifically, the Companies’ claims pertain to treating Alzheimer’s and remediating or curing other serious illnesses, including Parkinson’s, heart disease, and…

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BlueHippo in the Red? Not on the FTC’s Watch

By Mary M. Gardner, Ellen T. Berge & Leonard L. Gordon on February 13, 2019

Several high profile bankruptcies have occurred in recent years. Most would consider a bankruptcy proceeding a last resort. But some, seeking to expunge a debt, have contemplated that bankruptcy may be a safe way to avoid the long-arm of the law. The Federal Trade Commission, however, has taken great steps to ensure that an FTC judgment firmly stays on a wrongdoer’s balance sheet. In late December of last year, the FTC convinced a bankruptcy court…

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DOJ Reverses Course on the Wire Act, Changing the Odds on the State-Regulated Gambling Industry

By Kathleen K. Sheridan, Andrew E. Bigart & Michael S. Blume on February 6, 2019

The regulatory framework for online gambling recently took a wild turn when the Department of Justice Office of Legal Counsel (“OLC”) announced its view that the Wire Act (18 U.S.C. § 1084) applies to all forms of gambling—not merely sports betting. This marked a 180-degree reversal from the stance the OLC took just seven years earlier. The OLC’s 2011 opinion—which itself departed from public positions the DOJ had previously taken—was the foundation upon which…

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NY AG Finds Use of Bots, Sock-Puppets Illegal

By Leonard L. Gordon & Matthew S. Renick on February 4, 2019

Astroturf was again in the news last week, but not because the big game whose name we can’t mention was played on synthetic turf. Rather, last week, the office of the NY Attorney General (“AG”) announced it reached a precedent-setting settlement with artificial engagement company Devumi LLC and related companies (“Devumi”) over the selling of fake followers, likes, and influencer messaging (a/k/a “astroturfing”). Venable has been tracking the NY AG office’s assault on similar companies…

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New Automatic Renewal Law Takes Effect in D.C.

By Shahin O. Rothermel & Ellen T. Berge on January 28, 2019

Everyone thinks that when the federal government shuts down, nothing happens in Washington. Not true. Last week, following in the footsteps of other states, the District of Columbia passed a new law regulating automatic renewal offers. The law affects all companies that sell goods or services pursuant to a contract that automatically renews at the end of a definite term. Although the law mirrors other states’ laws in some respects, it creates much stricter requirements…

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Think Asterisks Don’t Matter?*

By Leonard L. Gordon, Tyler Hale & Elliot Kelly on January 22, 2019

Every brand that has designed a product label has felt the call of the asterisk. Visual real estate on packaging and in advertisements is limited, and marketing departments often groan at the piles of clumsy language that legal departments insist make it onto the page. But the elegant solution—dropping an asterisk and including the disclaimers, clarifications, or required disclosures in tiny print at the bottom—has traditionally drawn the ire of regulators or private plaintiffs who…

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Mastercard Targets Negative Options In 2019 – Demands Transparency

By Ellen T. Berge, Andrew E. Bigart, Leonard L. Gordon & Christopher L. Boone on January 14, 2019

As 2019 goes into full swing, it’s important for providers of payment processing services (referred to here as “acquirers”) and their merchants or submerchants to prepare for the various regulatory and industry changes coming this year. One such significant change comes in the form of Mastercard’s updated rules for negative option billing programs. Set to take effect on April 12, 2019, Mastercard’s new rules will tighten consumer protection requirements for negative option merchants and their…

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SCOTUS Instructs Courts to Enforce Parties’ Agreements with Respect to Arbitrability

By Stephen R. Freeland & Matthew S. Renick on January 10, 2019

Do you know what your arbitration provisions say about arbitrability? If not, now is a good time to review them in light of the U.S. Supreme Court’s unanimous decision this week in Henry Schein, Inc. v. Archer & White Sales, Inc. holding that, where parties have entered into an arbitration agreement, and that agreement clearly delegates to an arbitrator the question of which disputes must be arbitrated (i.e., questions of “arbitrability”), courts must enforce those…

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Regulatory & Litigation Developments for Advertisers and Marketers

Blog Authors

FCC Public Notice Requests Stakeholders to Sound Off on Soundboard Technology

FTC Opts Out of Canning the CAN-SPAM Rule

FTC and FDA Issue Warning Letters to Supplements Companies

BlueHippo in the Red? Not on the FTC’s Watch

DOJ Reverses Course on the Wire Act, Changing the Odds on the State-Regulated Gambling Industry

NY AG Finds Use of Bots, Sock-Puppets Illegal

New Automatic Renewal Law Takes Effect in D.C.

Think Asterisks Don’t Matter?*

Mastercard Targets Negative Options In 2019 – Demands Transparency

SCOTUS Instructs Courts to Enforce Parties’ Agreements with Respect to Arbitrability

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