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AD Nauseam: New Leadership, New Rules – How NAD Shaped Advertising in 2025

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ADventures in Law

Designing the ‘Buy’ Button: Clearer Disclosures, Fewer Lawsuits

In This Issue:
<div>
<ul>
 	<li><a href="#anti">Anti-Junk-Fee Bandwagon Is Getting Crowded</a></li>
 	<li><a href="#CBD">CBD Gummie Maker Spams Prominent Ad Watchdog</a></li>
 	<li><a href="#sheeran">Sheeran Gets It Off, Not On, and Escapes Infringement Charge</a></li>
 	<li><a href="#HM">H&amp;M Sheds Greenwashing Suit for Something More Comfortable</a></li>
 	<li><a href="#blog">Check Out Our Latest Blog Posts</a></li>
 	<li><a href="#webinar">Register for Our Upcoming Webinar</a></li>
</ul>
<h5><a id="anti" name="anti"></a>Anti-Junk-Fee Bandwagon Is Getting Crowded</h5>
Following a presidential call, Congress and the Golden State are looking to tame hidden charges

Return to Mayberry

We mentioned President Biden’s attack on junk fees <a href="https://www.bakerlaw.com/alerts/ad-ttorneyslaw-april-20-2023#dc">back in April</a>, tagging his <a href="https://www.npr.org/2023/02/07/1155313067/biden-bill-stop-junk-fees-travel-entertainment-state-of-the-union-2023">anti-junk fee harangue</a> in the State of the Union address as a quaint throwback to a simpler time in the American polity. “A crusade against smallish, undisclosed, unidentified, or misnamed charges [with] an almost pre-2001 feel,” we wrote. “The type of issue that used to be part of the warp and weft of politics but has been left behind for more vicious conflicts.”

But we didn’t mention something fairly obvious about such a gambit: Americans may long for more boring politics. So attacking junk fees isn’t just a throwback to an era of aw-shucks politics; it’s a smart political maneuver in its own right.

And, to prove the point, ever since Biden’s call for anti junk-fee legislation, other pols have followed suit.

Coattails

Bills have been introduced in the <a href="https://rubengallego.house.gov/media-center/press-releases/junk-fees-no-more-gallego-and-jackson-introduce-legislation-prevent">House</a> and <a href="https://www.blumenthal.senate.gov/newsroom/press/release/blumenthal-and-whitehouse-introduce-junk-fee-prevention-act-to-end-unfair-surprise-costs-for-consumers">Senate</a> advancing the Junk Fee Prevention Act; the press releases for both called out Biden’s speech. The bill contains provisions that would limit the reach and effectiveness of hidden charges, including requirements for clear and conspicuous disclosure, elimination of excessive or deceptive fees, provisions for ticketing fees, rules for refunding fees along with the cost of the product or service, and labeling junk fees as unfair or deceptive acts under the Federal Trade Commission Act.

And that’s not all…

The Takeaway

Attorney General of the world’s <a href="https://www.gov.ca.gov/2022/10/24/icymi-california-poised-to-become-worlds-4th-biggest-economy/">fifth? fourth? largest economy</a> Rob Bonta is also weighing in, <a href="https://oag.ca.gov/news/press-releases/attorney-general-bonta-calls-california-legislature-ban-hidden-fees-aka-junk">singing the praises</a> of California Senate Bill 478, which takes a similar swipe at the practice as the federal bill. The details of the bill are less interesting than the fact that action on the subject may be imminent in the Golden State, whose <a href="https://www.cato.org/commentary/no-california-not-worlds-fourth-largest-economy">quite-possibly-improperly-measured-yet-undeniable economic might</a> means that businesses that want access to California cash will feel pressure to play by its rules.

Bonta even issued a challenge to his fellow Californians. “California families are sick and tired of hiddenfees [sic], and SB 478 would right that wrong,” he wrote. “If you’ve been hit by hidden fees, I encourage you to share your story on social media using the hashtag #HiddenFeesUncovered.”

We’ve checked Twitter, and let’s just say that <a href="https://twitter.com/hashtag/hiddenfeesuncovered?src=hashtag_click">this hashtag isn’t exactly taking off</a>.

But perhaps Bonta is simply echoing Biden’s “bring the boring back” aesthetic by highlighting the utter normality of a bill.

Well played, Cali AG—well played.
<h5><a id="CBD" name="CBD"></a>CBD Gummie Maker Spams Prominent Ad Watchdog</h5>
Were they hoping that Truth in Advertising, Inc., would finally mellow out? 

Suicide Squad

If our job were Chief Spam Officer for a company making allegedly unsupported health claims—and thank god it’s not—the second item on our agenda, after sending out our portion of the 120+ billion spam messages that are spewed out across the internet daily, would be to keep our spam from landing in the basket of certain organizations and agencies.

We might avoid spamming the Federal Trade Commission, for instance, or the Better Business Bureau. We’d avoid domains belonging to groups whose business is to curb shady advertising.

We’d avoid, for heaven’s sake, organizations like Truth in Advertising, Inc. Why would anyone ever send spam to them?

Dark Patterns Aren’t This Obvious

“Sometimes the deceptive marketing falls right into our lap or should we say, our inbox,” TINA wrote in <a href="https://truthinadvertising.org/articles/truth-cbd-gummies-pure-cbd-gummies/">a recent post</a>, while simultaneously sharpening several long knives.

TINA’s post details the allegedly problematic claims of a spam email from Truth CBD Gummies, which was, in turn, a transcription of a blog article that TINA happily <a href="https://truthinadvertising.org/wp-content/uploads/2023/05/Truth-CBD-gummies-blog.png">posted for everyone to review</a>.

And there were plenty of claims to choose from.

Truth apparently claimed that its CBD products could treat a wide variety of syndromes, “from anxiety and depression, to epilepsy and multiple sclerosis.” CBD was legalized at the federal level by the 2018 Farm Bill, but it has not been approved by the Food and Drug Administration as an over-the-counter treatment for any conditions. The FDA and FTC both have sent out warning letters on this exact issue—to companies making such health claims for CBD products.

That’s probably the worst of the bunch, but the spam also pulled a bait-and-switch in which the consumer, clicking through for a “95 percent off discount” for the advertised gummies, was misdirected to an advertisement for an entirely different product. Additionally, TINA notes that the page displayed a countdown timer, presumably to pressure consumers into making a quick purchase—but it was nothing but a dummy timer that would reset as soon as the user reloaded the page.

The Takeaway

There’s a dollop of humor at the end of TINA’s post; apparently Truth included a disclaimer at the bottom of its original blog post that read, “Please understand that any advice or guidelines revealed here are not even remotely a substitute for sound medical advice from a licensed healthcare provider.”

“Not even remotely.” Standard legalese certainly has evolved, right?

Look, we love giving good advice to you, dear reader. But in this case, making claims that a product treats serious ailments without any substantiation doesn’t require further explanation.

So let’s try something new: advice to spammers. Especially the ones who are brilliant enough to email TINA.

Ahem. Hey spammers! Listen up, bros!

Keep sending your half-baked claims and deceptive offers to government agencies and ad-related consumer watchdog groups. It’s a brilliant tactic that’s sure to get you FDA warning letters and endless negative press attention a fraction of a few dollars more in revenue.

We’re not even remotely being sarcastic.
<h5><a id="sheeran" name="sheeran"></a>Sheeran Gets It Off, Not On, and Escapes Infringement Charge</h5>
“Thinking Out Loud” is a sound-alike, but it’s Ed’s sound-alike

You Better Testify!

All of us have that friend. The one who busts out a guitar at the party and starts performing. Where did they get it? Did they find it in the host’s bedroom? Did they bring the guitar with them? Who asked them to do this? If we ignore them, will they just sort of stop?

We wonder if the jury judging Ed Sheeran felt the same way.

As the <a href="https://www.nytimes.com/2023/04/27/arts/music/ed-sheeran-testifies-guitar-trial.html">Old Grey Lady</a> reported a few weeks back, Sheeran busted out his six-string in court to defend his song “Thinking Out Loud” against the heirs of co-writer of Marvin Gaye’s “Let’s Get It On.”

“Cradling his acoustic instrument in a federal courtroom in Manhattan,” a recent article explained, “Mr. Sheeran demonstrated the four-chord sequence at the heart of his song, which he said was written in a few hours in early 2014 with his friend and longtime collaborator Amy Wadge.”

If the jury rolled its eyes at this display, it didn’t <a href="https://www.nytimes.com/2023/05/04/arts/music/ed-sheeran-marvin-gaye-copyright-trial-verdict.html">show in the verdict</a> when they cleared the English singer-songwriter of copyright infringement.

Collaboration Project?

We know where we stand in any conflict involving Marvin Gaye and Ed Sheeran. It might be our age, or it might simply be good taste, but we worship at the altar of Marvin. What’s Going On? The duets with Tammi Terrell? <a href="https://www.youtube.com/watch?v=R9KsCAIzsW0">His uncanny ability to make great art while lounging in sweatpants?</a>

No one can hold a candle.

And yet…we hear the similarity. <a href="https://www.youtube.com/watch?v=0kt1DXu7dlo">You be the judge</a>, but to our ears it’s hard to miss the resemblance in the verse. So why didn’t the jury hit Sheeran with the copyright charge and <a href="https://nypost.com/2023/05/01/ed-sheeran-im-done-if-found-liable-in-marvin-gaye-lets-get-it-on-copyright-lawsuit/">end his musical career</a> once and for all?

The way copyright is structured, when it comes to songwriting at least, the plaintiff has two hurdles to clear.

First, if the defendant can prove “independent creation”—that they put the song together without copying or being influenced by the original—that’s the ball game. As the New York Southern District Court <a href="https://variety.com/2023/music/news/ed-sheeran-trial-jury-deliberations-testimony-copyright-case-1235602873/">told the jury</a>, “Independent creation is a complete defense, no matter how similar that song is.”

It took Sheehan’s jury three hours to decide that he and his songwriting partner passed the test.

The Takeaway

If Sheeran had failed to prove that “Thinking Out Loud” was created independently, the case would have moved on to a direct analysis of the music itself, a task his jury didn’t have to bother with. Copyright Lately <a href="https://copyrightlately.com/sheeran-wins-copyright-trial-on-independent-creation/">puts it succinctly</a>:
The jurors didn’t need to decide some of the most hotly-contested issues of the two-week trial, including whether the ‘selection and arrangement’ of the otherwise unprotectable chord progression, harmonic rhythm, and pitch sequences in ‘Let’s Get It On’ were sufficiently numerous and original to qualify for copyright protection.
So, Ed’s career survives. Fine. <a href="https://www.buzzfeed.com/bradesposito/ed-nz#.sf0V3m2g1">Seems like a nice guy</a>.

Us? We’re going to go put on our track suits, lay back on the couch, and listen to Marvin. Maybe “<a href="https://www.youtube.com/watch?v=G-hf1nkqsLg">Distant Lover</a>,” live at the Oakland Coliseum in ’74, or maybe “<a href="https://youtu.be/0IcyL-SviVM">Your Precious Love</a>” with Tammi from United.

In either case, we’re in for the evening.
<h5><a id="HM" name="HM"></a>H&amp;M Sheds Greenwashing Suit for Something More Comfortable</h5>
Plaintiff scolded for insinuating claims the company never made

Faded Patterns

H&amp;M’s explanation of its “Conscious Choice” marketing tag is…well…a little easy-going. Check it out:
We also offer Conscious choice: pieces created with a little extra consideration for the planet. Each Conscious choice product contains at least 50% of more sustainable materials—like organic cotton or recycled polyester—but many contain a lot more than that. The only exception is recycled cotton, where we accept a level of at least 20%. The quality of recycled cotton makes it tricky to include a higher amount. But we're hoping to change that! With new technological solutions and innovations, we're continually working to make our range even more sustainable.
We almost find it refreshing as far as environmental guarantees are concerned—there are <a href="https://thesustainableagency.com/blog/greenwashing-examples/">so many examples</a> of shaky sustainability claims that it’s nice to see someone splitting hairs. And those split hairs probably saved H&amp;M from a protracted legal battle.

Cut on a Bias?

Missourian Abraham Lizama and Californian Mark Doten sued the retail giant for using the Conscious choice tag as a greenwashing tactic, claiming that consumers like them were misled into “thinking these are ‘green’ products, which are known to be more sustainable and environmentally friendly.”

Remember those last two words.

Doten’s claims were tossed by the court in its order granting H&amp;M’s motion to dismiss. The Eastern District of Missouri, where the case was filed, held that he could not establish personal jurisdiction as a non-Missourian under Missouri’s Merchandising Practices Act.

Lizama’s claims received more sustained attention from the court, although the end result was the same. After reviewing H&amp;M’s allegedly false statements, the court concluded that Lizama had failed to state a case under the Missouri statute.

“H&amp;M states that its conscious choice garments contain ‘more sustainable materials’ and that the line includes ‘its most sustainable products’” the order reads. “No reasonable consumer would understand this representation to mean that the conscious choice clothing line is inherently ‘sustainable’ or that H&amp;M’s clothing is ‘environmentally friendly’ when neither of those representations were ever made.”

Toeing the Line

In fact, the court waved the hint of a threat of sanctions at Lizama’s use of “sustainable and environmentally friendly” in his complaint.

“Despite Lizama’s repeated use of the phrase ‘environmentally friendly’ in the complaint, H&amp;M never actually claims that its conscious choice collection items are ‘environmentally friendly,’” the court wrote. “Although Lizama avoids sanctionable conduct by not placing this phrase in quotes, his repeated use of the phrase directly after other quoted phrases is misleading, to say the least, particularly where he continually urges the Court to deny dismissal of the complaint because H&amp;M falsely represents that its products are environmentally friendly.”

Yikes.

The Takeaway

This decision is a win for companies seeking to truthfully promote more sustainable aspects of their products or services. H&amp;M offered clothes that incorporate more recycled material than their regular products—this is a difference relevant to consumers that H&amp;M should be able to highlight. Where companies often trip up is using a description that implies a general green benefit without adequately disclosing exactly what that benefit is.  Customers’ imaginations are then free to run wild, and inevitably some will assign a level of sustainability to the product that isn’t true. The court was satisfied here that H&amp;M detailed the specifics of how these products are sustainable. In another court or regulatory forum, however, there may have been more attention paid to exactly how customers go from viewing “Conscious Choice” to finding the much longer description regarding the amount of recycled material. Are the recycling details that qualify the “Conscious Choice” claim adequately disclosed to consumer? If making similar claims, be sure to consider these questions.

It’s worth noting that this isn’t H&amp;M’s first trip to the rodeo, either—it’s been a part of the rising number of greenwash suits filed nationwide. Recall that last summer, a separate suit was launched against the company regarding its “sustainability profiles” tag.
<h5><a id="blog" name="blog"></a>Check Out Our Latest Blog Posts</h5>
<a title="FTC's 20th Public Meeting – Privacy, Privacy and More Privacy" href="https://www.adventures-in-law.com/ftc/ftcs-20th-public-meeting-privacy-privacy-and-more-privacy/">FTC’s 20th Public Meeting – Privacy, Privacy and More Privacy</a>

It has been a while since we last gathered for one of the monthly public meetings of the Federal Trade Commission (FTC or Commission). Clearly, the monthly nature of the meetings is questionable, but then again, there are only so many policy statements that an agency can issue. When we last met in March 2023, former Commissioner Christine Wilson had just loudly announced her exit from the Commission and the agency had launched a few new studies that won’t see the light of day for quite some time. So we return to an agency that – for the first time in decades – has only Democrat commissioners and no Republicans.

<a title="Endorsements and Actual Usage – A Deep Dive into the FTC and State Attorneys General Lawsuits Against Google" href="https://www.adventures-in-law.com/ftc/endorsements-and-actual-usage-a-deep-dive-into-the-ftc-and-state-attorneys-general-lawsuits-against-google/">Endorsements and Actual Usage – A Deep Dive into the FTC and State Attorneys General Lawsuits Against Google</a>

Texas Attorney General Ken Paxton recently announced his office has reached an $8 million settlement with Google of its lawsuit alleging deceptive radio disc jockey advertisements for the Google Pixel 4 smartphone. You might remember that we previously reported on this lawsuit when it was filed, in January 2022. While Texas was first out of the gate with its lawsuit against Google, the Federal Trade Commission (FTC) and a coalition of six states later sued Google and a large media company for the allegedly deceptive radio ads and settled their lawsuit first for a combined total of $9.4 million in penalties to the states. The state of Texas took advantage of the multistate lawsuit to settle with the media company (along with Arizona, California, Georgia, Illinois, Massachusetts and New York, which settled with both companies) but continued to pursue its solo lawsuit against Google until last week.
<h5><a id="webinar" name="webinar"></a>Register for Our Upcoming Webinar</h5>
<a href="https://bakerlaw.zoom.us/webinar/register/WN_pEm2T80PT_yt0YLE3CUD2w#/registration">Emerging Legal Implications with AI in Advertising</a>

From ChatGPT to Dall-E, generative AI tools – those using AI to create content – are capturing imaginations, including those of advertising and marketing teams. Join us for a one-hour webinar in which we provide an overview of what generative AI is and can do, important intellectual property and data privacy concerns, and the regulatory and legislative landscape in the US and abroad.  We will also discuss how brands may be able to harness the creativity of this technology while mitigating legal risk.

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AD-ttorneys@law – June 1, 2023

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