Internet and AdTech Law Blog
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- Blockchain & Cryptocurrency
- Cannabis and CBD
- Consumer Financial Protection Bureau (CFPB)
- Consumer Protection
- Department of Justice (DOJ)
- Email Marketing (SPAM)
- Enforcement Trends
- Featured Posts
- Federal Trade Commission (FTC)
- Intellectual Property (IP)
- Internet Defamation
- Internet Law
- Lead Generation
- Marketing & Advertising
- Nutraceuticals & Dietary Supplements
- NYC Department of Consumer Affairs (DCA)
- Privacy and Data Security
- Social Media
- State Attorneys General
- Telephone Consumer Protection Act (TCPA)
- Trade Secrets
The Federal Trade Commission requires advertisers to possess a “reasonable basis” for express and implied claims. The failure to do so constitutes an unfair and deceptive act or practice in violation of Section 5 of the FTC Act. Substantiation is a key FTC enforcement priority. Advertisers should be intimately familiar with FTC substantiation investigation and…
On April 21, 2020 in the matter of AMG Capital Management, the U.S. Supreme Court effectively made it more difficult for the Federal Trade Commission to force those that engage in deceptive business practices to return ill-gotten gains obtained from consumers. The unanimous ruling was written by Justice Stephen Breyer and is a victory of…
Governor Andrew Cuomo has signed into law a bill legalizing recreational marijuana for adults 21 and older. Consumers may now possess and use marijuana lawfully, with some restrictions. The bill provides that New Yorkers over the age of 21 may lawfully use or consumer cannabis products; possess up to three ounces for recreational use; possess…
On March 25, 2021, the Federal Trade Commission announced the creation of a new rulemaking group within the agency’s Office of the General Counsel. According to the FTC, the new structure will allow it to take a “strategic and harmonized approach to rulemaking across its different authorities and mission areas.” With this new group in…
Much like other states that have followed California in passing data privacy legislation, Virginia has passed and signed into law the Virginia Consumer Data Protection Act. Similar to California’s CCPA, Virginia’s law builds upon fair information privacy principles. The law is intended to provide consumers with increased control over how their personal data is used.…
On February 9, 2021, SB 1475 – New York’s new automatic renewal law – became effective. New York has now joined numerous states that have enacted similar law related to automatic renewal plans and continuity services, including California. Prior to enactment of SB 1745, New York’s ARL – N.Y. Gen. Oblig. Law § 5-903 –…
Internet Law Blog
State Attorneys General (AGs)
Attorneys general are the “Top Cops” and regulators of their state. They act on behalf of citizens by exercising their broad consumer protection authority to enforce and investigate (CIDs) unfair and deceptive acts and practices (UDAP), including false advertising.
Blockchain + Cryptocurrency
A blockchain is a digitized and decentralized public ledger technology for cryptocurrency transactions, including those involving Bitcoin. A cryptocurrency is a digital or virtual currency that utilizes encryption techniques to secure transactions. As the primary federal agency for protecting consumers and promoting competition, blockchain presents a number of concerns for the FTC given the digital technology’s use by those acting unlawfully. FTC cases that involve virtual markets have now joined those involving traditional ones.
Cannabis and CBD
Regulatory oversight of the emerging cannabis industry is shifting at a rapid pace. The jurisdictions within which the product is legal for medical or recreational purposes continue to expand. Cannabis advertisers, growers, distributors, processors, investors and others must be mindful of conflicting state and federal marijuana laws.
Consumer Financial Protection Bureau (CFPB)
The U.S. Consumer Financial Protection Bureau (CFPB) was created by the Dodd-Frank Wall Street Reform and Consumer Protection Act. The CFPB’s operates as a watchdog to enforce the consumer financial product and service markets. It has consumer protection authority to enforce and investigate (CIDs”) unfair, deceptive, and abusive acts and practices (UDAAP).
Consumer protection laws and regulations exist so that government agencies are able to protect the rights of consumers. The Federal Trade Commission’s Bureau of Consumer Protection is charged with enforcing and investigating (CIDs) unfair, deceptive and fraudulent business practices, and educating consumers about their rights.
A copyright owner has the exclusive right to control the use and distribution of their creative work. Copyright law if a federal law and applies to any original works of authorship that are fixed in a tangible medium of expression. Fair use is a doctrine that allows for the limited use of copyrighted material without permission from the copyright holder.
Department of Justice (DOJ)
The U.S. Department of Justice (DOJ) enforces the law and defends the interests of the United States by preventing and prosecuting crimes and unlawful behavior. The DOJ administers several federal law enforcement agencies including the Federal Bureau of Investigation (FBI).
Electronic commerce, also known as eCommerce, refers to the purchase and sale of products or services online. Electronic commerce law addresses such issues as compliance with applicable Internet and technology legal regulatory requirements.
Email Marketing (SPAM)
Commercial email marketing (SPAM) laws are governed by state and federal legislation. The federal Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM Act) primarily focuses upon unsolicited and deceptive commercial email. California Business and Professions Code § 17529, et seq., perhaps the nation’s toughest anti-SPAM statute, is preempted by the CAN-SPAM Act unless falsity or deception is present.
Consumer protection law enforcement covers a multitude of legal regulatory matters initiated by federal and state agencies. Advertising and marketing-related enforcement action trends include developing issues that impact the litigation of alleged violations of unfair and deceptive trade practices statutes, such as Section 5 of the FTC Act.
Featured blog posts showcase important news and developments in marketing, advertising and communications law.
Federal Trade Commission (FTC)
The U.S. Federal Trade Commission (FTC) enforces and investigates (Civil Investigative Demands) fraudulent, unfair and deceptive practices, as well as anticompetitive marketplace conduct. It possesses investigative authority pursuant to Sections 6, 9 and 20 of the FTC Act. Following an investigation, the FTC may initiate a consumer protection or antitrust enforcement action. The basic consumer protection statute enforced by the FTC is Section 5(a) of the FTC Act. Consumer protection laws are enforced by the Bureau of Consumer Protection. Antitrust laws are enforced by the Bureau of Competition.
Intellectual Property (IP)
Intellectual property (IP) pertains to creations of the human intellect, including inventions; artistic and literary works, designs, symbols, names and images. IP law deals with the protection and enforcement of copyrights, patents and trademarks.
Internet defamation is a false and unprivileged allegation of fact made that damages an individual’s reputation, and that is published as a result of negligence or malice. Online libel is a written comment, review, post or article. Online slander is a spoken defamation, and can include, for example, a false allegation of fact via a podcast or audio file.
Internet law, or cyberlaw, refers to how laws govern how the Internet is used. It concerns the law of information technology and governs, without limitation, cybersquatting and domain names, data privacy, defamation, eCommerce, intellectual property, and marketing and advertising.
Online lead generation is the process of connecting consumers that are interested in goods or services with the merchants or providers that provide them. It is a highly-regulated marketing method and involves the collection and use of consumer data by lead generators, lead aggregators and product/service providers via various digital channels.
Litigation refers to the process of resolving disputes by initiating legal action via the public court system. State courts are established by the laws of each state. Federal courts are established under the U.S. Constitution and have narrower jurisdiction that state courts. Regulatory litigation includes government plaintiff initiated actions that include, without limitation, allegations of unlawful marketing, advertising, cybersecurity and privacy practices.
Marketing + Advertising
The Internet connects marketers to customers across the country and around the world. The general principles of advertising law apply online, regardless of the existence of space-constrained screens and social media platforms. The FTC Act’s prohibition on “unfair or deceptive acts or practices” encompasses online advertising, marketing, and sale.
Nutraceuticals + Dietary Supplements
The nutraceutical and dietary supplement industry is a heavily regulated one, including by the Federal Trade Commission. The role of the FTC is to ensure that consumers are provided with accurate information so that they can make informed decisions. It has primary responsibility for advertising claims. Strong scientific support for health-related claims is required by the FTC and the agency has taken action against supplement manufacturers, ad agencies, distributors, retailers, catalog companies, infomercial producers and others involved in deceptive promotions.
NYC Department of Consumer Affairs (DCA)
The New York City Department of Consumer Affairs (DCA) (now known as New York City Department of Consumer and Worker Protection) is an agency of the Government of New York City. The Division of Consumer Protection advocates consumers’ interest before legislative and regulatory bodies, mediates and resolves consumer complaints.
News outlets call on Hinch Newman for commentary on marketing, advertising, regulatory communications and digital media related legal issues.
Privacy + Data Security
Federal and state laws regulate the collection and use of personal information. The FTC and state attorneys general enforce privacy-related promises made to consumers and initiate investigations and enforcement actions against organizations that violate consumers’ privacy rights and fail to implement reasonably adequate data security protocols.
The FTC actively investigates and takes action against influencers and brands that fail to clearly disclose relationships when promoting or endorsing products through social media. The FTC’s Endorsement Guides provide that if there is a material connection between an endorser and an advertiser that might affect the weight or credibility that consumers give the endorsement, that connection should be clearly and conspicuously disclosed.
Online Sweepstakes + Contests
Online sweepstakes and contests are marketing tools that are utilized to increase sales and connect with consumers. State and federal laws apply to games of chance and games of skill.
Telemarketing is the process of selling products or services over the telephone. It includes inbound and outbound commercial telephone calls. The Federal Communications Commission (FCC), the Federal Trade Commission and state attorneys general enforce telemarketing laws, including, but not limited to, the Telephone Consumer Protection Act and the Telemarketing Sales Rule (TSR) in order to protect consumers from fraud and provide privacy.
Telephone Consumer Protection Act (TCPA)
The Telephone Consumer Protection Act (TCPA) regulates telemarketing calls, auto-dialed calls, prerecorded calls, text messages and unsolicited faxes. The FCC is empowered to issue rules and regulations implementing the TCPA. Key legal considerations include, without limitation, whether an automatic telephone dialing system (ATDS) or pre-recorded voice is used when making the call, whether the recipient provided prior express written consent, whether the number phoned is a landline or residential line, whether the recipient’s telephone number is registered on a state or federal Do Not Call (DNA) list, whether an exemption from prior express written consent applies and whether consent has been revoked.
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. Trademarks are governed by both state and federal law. The main federal statute is the Lanham Act.
Trade secrets are confidential business information that provide a competitive edge. They can numerous items, such as sales methods, advertising strategies, business plans, customer lists and other commercial secrets. The unauthorized use of such information is also considered an unfair practice.