The Federal Trade Commission’s (“FTC”) Endorsement Guides have evolved over the past forty years from regulating celebrity endorsements and testimonial advertisements to policing social media advertising, including influencer endorsements and native advertising. On February 12, 2020, the FTC announced that it had voted 5‑0 to approve a proposed Federal Register Notice, seeking comment on whether to make changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“the Endorsement Guides”), which were enacted in 1980 and amended in 2009, as part of a systematic review of all current FTC rules and practices. The Endorsement Guides have steadfastly required transparency in advertising and, if there is a connection between an endorser and the company selling the product or services being advertised or promoted which, if disclosed, might affect the weight or credibility of the endorsement, such connection must be disclosed clearly and conspicuously.Continue Reading FTC Finalizes Revisions to the Endorsement Guides, Proposes New Rule for Consumer Reviews and Testimonials and Updates FTC Staff Guidance
Two plaintiffs learned the hard way that not all environmental marketing claims are treated the same. A federal judge in Missouri recently dismissed a proposed class action by the shoppers against H&M over the company’s marketing of its “Conscious Choice” fashion line.Continue Reading Lizama et al. v. H&M: A Lesson in Artful Crafting of Green Claims
On August 10, the CFPB issued an interpretive rule stating that digital marketing providers that are involved in the identification or selection of prospective customers or the selection or placement of content to affect consumer engagement including purchase or adoption behavior, are subject to the CFPB’s jurisdiction. The rule ostensibly clarifies the scope of companies that are “service providers” under the Consumer Financial Protection Act (“CFPA”) to include digital marketing providers, and thereby subjecting them to the CFPB’s authority to prohibit unfair, deceptive, abusive acts or practices (UDAAPs). Continue Reading CFPB’s New Interpretive Rule Sets Sights on Digital Marketing Vendors
A New York federal court recently granted Apple a motion to dismiss a case where an alleged class accused Apple of misleading consumers about the waterproof nature of their iPhones. Apple had several allegedly misleading advertisements about their iPhones, with advertisements stating that the iPhone 11 is “water resistant up to 2 m for 30 min.” The court granted Apple’s motion to dismiss because the plaintiffs did not allege how they were harmed by Apple’s advertisements. Apple’s user manuals and warranties also disclaimed coverage for liquid damage. While the plaintiffs’ phones allegedly malfunctioned due to some amount of water contact, the court found that the plaintiffs failed to plead that their iPhones were damaged due to their reliance on the advertisements. Additionally, the plaintiffs failed to identify any warranty claiming that Apple’s products could withstand water damage.
Continue Reading The Latest Win for Apple: Dismissal of Class Action about iPhones