AD-ttorneys@law – Jan. 3, 2023

Alerts / January 3, 2023

In This Issue:

FTC Opens Green Guide Revision for Public Comment

It’s the first revision in a new, environmentally panicked time

The Greatest Generation

The ’90s were an active decade for Federal Trade Commission (FTC) activity regarding environmental marketing claims. In 1992, the Commission first introduced its Green Guides for the Use of Environmental Marketing Claims (Green Guides), which were designed to help advertisers and marketers steer clear of deceptive claims, as defined by the FTC Act, when discussing the impact their products have on the environment. Guides are typically revised, when necessary, on 10-year cycles, and the FTC revised the Green Guides twice more over the course of the decade. And now it’s that time again.

The Takeaway

Citing an uptick in “environmental claims related to various products, packaging, services, and manufacturing processes” instigated by “increased attention to environmental concerns, including climate change and issues driven by the COVID-19 public health crisis,” the FTC recently opened to public comment a potential new revision to the Green Guides.

We’ve covered green marketing claim snafus since our blogging began. Most recently, we’ve covered the backlash against so-called greenwashing, which, in itself, is a sign of increased awareness of and sensitivity to the nature of environmental claims (see here and here, along with an in-depth discussion of carbon reduction advertising here).

If you have been even slightly tempted to make a green impact claim about a product, consult the Green Guides first. If you deal in a marketplace that’s environmentally sensitive, gather your thoughts and weigh in with your concerns as the new guides are hammered out.

The Commission wants to hear your thoughts on the continuing need for the guides, the benefits and drawbacks of the current version, industry compliance, and new topics not covered by the present version of the guides. Comments must be received by Feb. 21, 2023. And, of course, we are always happy to assist in whatever way we can.

Bipartisan Lawmakers Move to Clean TikTok’s Clock

Is time up for the social network du jour?

15 Seconds of Fame

Beware – all you switch-flippers, lip-syncers, movie reenactors, celebrity impersonators and people who experience frissons of delight from the sound of nails scratching on makeup packaging – of sharing your videos on TikTok: The app’s days may be numbered.

Government pincers are closing on TikTok, the short-form video app that we didn’t really need to define except for our readers who are older than 30.

The Senate recently passed a bill sponsored by Sen. Josh Hawley (R-MO) to ban the app from U.S. government devices. A companion bill was introduced in the House last year but is currently stuck in committee. This legislative move, designed to limit the app’s perceived information security risks, follows similar app bans and restrictions enacted by the Department of Defense, the State Department and the Department of Homeland Security over the past three years.

Why all the brouhaha? Well, alarms have been raised about the potential for the Chinese government to use the app to collect data on United States citizens and use it for intelligence purposes as well as concerns about potential censorship and the dissemination of propaganda.

Really Biting Satire Is Always Better than Physical Force

As always in this hyper-polarized political environment, it pays to keep your eyes on any proposed legislation that somehow cobbles together support from both sides of the aisle.

Consider, for example, the recent introduction of the ANTI-SOCIAL CCP Act, a bipartisan Senate bill,  sponsored by Sen. Marco Rubio (R-FL), which would ban TikTok from operating in the United States altogether and purports to “protect Americans by blocking and prohibiting all transactions from any social media company in, or under the influence of, China, Russia, and several other foreign countries of concern.”

The bill’s acronym stands for “Averting the National Threat of Internet Surveillance, Oppressive Censorship and Influence, and Algorithmic Learning by the Chinese Communist Party Act.” It’s a brilliant legislative acronym that combines relevant terminology with an extra flourish of passive aggression, which is sure to make the Chinese Communist Party clutch its pearls.

(We are connoisseurs of the clunky legislative acronym – check out our previous articles here, here, here, here, here and here.)

Rubio’s outright ban has support in the House from Reps. Mike Gallagher (R-WI) and Raja Krishnamoorthi (D-IL), who introduced companion legislation.

The Takeaway

What does this mean for marketers? If the TikTok ban passes, there’s nothing that can be done to recover sunk costs of advertising on the platform. The best bet is to salvage every scrap of your video content and diversify your marketing across a number of competitor platforms.

The format is what’s important here; if you’re ready to continue producing quality marketing videos, you won’t be caught flat-footed by the disappearance of TikTok.

Unless you’re secretly turned on by the tingling sensation caused by the sound of vaporizing code.

Rihanna Lingerie Company Settles Negative Option Suit

Checkout process forced users into a deceptive VIP program sale

In the Navy

Ever see the gif of Rihanna throwing shade that was popular a while back?

That same withering look sprang to mind when we heard about a recent settlement filed by the Caribbean Queen herself in California Superior Court, Santa Clara County.

Here’s the background. Rihanna’s upscale lingerie line, Savage X Fenty, which is a joint venture between Riri and TechStyle Fashion Group, ran afoul of the watchdogs over at Truth in Advertising (TINA) back in 2020. Then, TINA had accused the company of violating a 2014 Stipulated Judgment that prohibited TechStyle and its partners “from deceptively marketing product prices and discounts that are only available to consumers who are bound by the company’s VIP membership without clearly and conspicuously disclosing this fact.” TINA alleged that Savage X Fenty had been advertising discounted product prices in bold, striking text, but hiding in tiny font the disclosure that such discounted prices were restricted to VIP members only. In typical fashion, TINA brought receipts.

_____ Better Have My Money

TINA further alleged that Savage X Fenty engaged in an “unclear and inconspicuous negative option offer” in the form of a “Savage X Monthly Membership” that was automatically added to a customer’s shopping bag (without showing the price for the membership or obtaining affirmative consent) as soon as a customer began shopping on the site.

In addition to not being able to see the price of the added membership, customers were restricted from completing their purchase without first agreeing to the terms and conditions of the recurring membership.

It was not until the final confirmation page for the order, after consumers had already entered their payment information, that the price of the VIP Membership – $49.95/month – was disclosed. Savage X Fenty also allegedly failed to disclose limits on accumulated consumer credits and made it difficult for VIP members to cancel their subscription.

The Takeaway

TINA cc’d the Federal Trade Commission in its 2020 letter to the Santa Cruz County DA’s office. While the commission itself took no action, California regulators did. In August of this year, the Santa Clara County DA filed a civil complaint against Savage X Fenty alleging violations of California’s Unfair Competition Law and Automatic Purchase Renewal Law for the company’s misrepresentation of the nature of its VIP credit program and for its failure to disclose the terms of its auto renewal program.

Last month, Savage X Fenty settled with the state, whereby the company agreed to pay $1 million in civil penalties, provide $150,000 in restitution for California consumers, and permanently stop engaging in false, deceptive and misleading marketing tactics.

You can feel TINA indulging in a bit of swagger in its press release following the settlement: “Our call for action against Savage X Fenty and subsequent regulatory enforcement by California should serve as a warning for companies attempting to use deceptive marketing to enroll consumers in negative option offers,” stated TINA’s Executive Director Bonnie Patten.

Swagger vs. shade. If we’re right about Rihanna’s reaction to this news, we have to wonder at whom her side-eye is aimed: the company with which she partnered, TINA, or her own fans and customers?

Starting Fresh in the New Year: Paparazzi Lawsuit Roundup

The Fashion Law shares an epic list

What’s the Haps with the Paps?

Oh, the paparazzi lawsuits. How we’ve missed them.

We haven’t covered them lately, but once upon a time, we covered a mess of them. From Gigi Hadid to Emily Ratajkowski, Kylie Jenner to Cardi B, no influencer was immune from these paparazzi-instigated complaints, which were a mainstay of our reporting for several years.

And we tried to keep up. We did. But as we noted in an earlier post, COVID kind of stepped in and shifted our priorities for a couple of years.

But now that the world is slightly more normal than it’s been in a while, we’ve been wondering how to hop back in the saddle. Many of the cases we’ve covered have been either settled or dismissed. And of course, new suits have been filed.

Where to begin?

The Takeaway

Enter one of our favorite blogs, The Fashion Law, which has sashayed to the rescue. The folks at TFL have put together a 7,000-plus word paparazzi copyright lawsuit epic titled “From Gigi Hadid to Goop: A Running List of Paparazzi Copyright Lawsuits.”

This sort of round-up is why everyone should check out TFL if they have a minute. They’re calling this list “non-exhaustive,” but if you aren’t spent by the time you’re done reading it, there’s something wrong with you.

One thing before we go. In the new year, we’ll be looking to see how the advent of AI image generators (like OpenAI’s DALL-E) affects right-to-privacy and copyright lawsuits, particularly in fashion advertising.

Until then, enjoy the survey!

Check Out Our Latest Blog Posts

Is a Data Clean Room the Answer to Your Privacy Woes?

As we head into 2023, advertisers, publishers, ad tech companies and others involved in the digital advertising ecosystem are facing significant challenges when it comes to data. It can be overwhelming: five new U.S. state data privacy laws to contend with; a continued regulatory focus in Europe, including a new suite of proposed legislation relating to the digital data ecosystem; and the deprecation of third-party cookies. Facing so many challenges, everyone is looking for solutions to help them continue to engage with consumers in a compliant way. One potential solution you’ve likely heard about – and will continue to hear about in the coming year – is a data clean room.

New Year’s Resolutions for the Federal Trade Commission That No One Asked For

New Year’s resolutions are usually quite personal – nobody wants friends telling them how to improve their lives. Knowing this, I nevertheless offer a few resolutions to my former employer, the Federal Trade Commission (FTC). Watching the agency from the outside for the past 14 months, a number of things have jumped out at me as issues that I think the agency should focus on a bit and a few changes that should be considered.

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