The Advertising Law Landscape: Recent Trends and Developments to Watch Out For in 2018
Every year, businesses face dilemma when it comes to conceptualizing good campaign strategies. The challenge to develop a unique and catchy ad always arises, and this pushes companies to double their marketing efforts. Typically, this is done with the help of the ever-growing internet and social networks available today.
However, as much as these social platforms help in broadening a company's advertising and marketing reach, these also increase the company's exposure to risks and legal responsibilities.
Join a panel of key thought leaders and practitioners assembled by The Knowledge Group as they bring the audience to a road beyond the basics of Advertising Law, and as they delve into an in-depth analysis of the law's trends and developments in the 2018 landscape. Speakers will also provide the audience with practical compliance strategies, thus minimizing exposure to legal liabilities, while developing the best advertising strategies.
In a LIVE Webcast, the speakers will discuss:
- Advertising Law – Overview
- FTC, NAD, and FCC Updates
- Advertising Challenges Companies Usually Face
- Legal and Ethical Responsibilities
- Advertising and Marketing in the 2018 Landscape
- Practical Strategies
Claudia Vetesi, Partner
Morrison & Foerster LLP
- Advertising class actions in the aftermath of Bristol-Myers Squibb: Bristol-Myers delivers a blow to “litigation tourism”—the practice of class action plaintiffs bringing claims in the most favorable venue regardless of residency or company contacts with the forum. While litigation-tourism has been most prevalent in food misbranding cases, especially to California, it extends to all kinds of class actions, including product liability and defect cases, privacy cases, financial services litigation, and cases brought under federal statues such as the Telephone Consumer Protection Act. After Bristol-Myers, plaintiffs must now demonstrate an “adequate link” between the defendant’s conduct in that forum and their claims.
- Article III standing and the requirement of “tracing”: Many advertising cases are grappling with Article III standing and the requirements of traceability—the causal connection between the injury and defendant’s alleged action. For example, this comes up in consumer goods cases where a company uses multiple suppliers for its products. The plaintiff must allege that the products were sourced by the suppliers engaging in the challenged conduct. This issue can also be viewed as a lack of “ascertainability” under class certification requirements.
- Injunctive relief standing—developing case law: In advertising cases, courts are split regarding when a plaintiff has standing to pursue injunctive relief, such as advertising changes. One line of cases holds that a plaintiff must allege he/she intends to buy the product again. Another line holds that a plaintiff does not have standing where he/she now knows the “truth” about the product (i.e., cannot be fooled again). And yet another line of cases holds that if a company changes its advertising, a plaintiff lacks standing to pursue injunctive relief. I’ll explore the nuances of these theories as well as which way courts have been trending.
- Developments in the law regarding multi-tier pricing in the retail industry.
Sonette T. Magnus, Attorney
Lewis Rice LLC
- Substantiation of claims made in advertisements (i.e. “studies show”), and the level of substantiation required based on the type or nature of the claim ( I will use the example of health claims to illustrate), and discuss how those disclosures must be made (font, size, clear and conspicuous, etc.)
- Required disclosures, focusing on native advertising disclosures (i.e. fashion magazine must disclose that ad was paid for by X rather than leaving the consumer with the impression that the ad is a statement or opinion of an independent source); EvanTube; YouTube influencers and required disclosure of paid endorsements (or incentivized endorsement)
- Need to obtain permission for use of celebrity likeness or copyrights in advertisements (and that a disclaimer or reference to source is not enough). I will likely discuss Sophia Vergara, and the use of prominent street art in ad campaigns without first obtaining a license from the artist
- Need to protect your brand from misuse by YouTube influencers or other companies (or YouTube fake commercials)
James H. Davidson, Shareholder
Federal government threats to advertising
- The federal taxation of advertising: Congress has made nine efforts in the past 30 years to impose some form of taxation on advertising or to regulate the content of advertising. The most recent was an effort to limit the amount a business may deduct as a section 162(a) expense and to fold it into what became the Tax Cuts and Jobs Act of 2017. While the tax-writing committees of the Congress had the advertising deduction in their top tier of prospective revenue raisers, the tax reform act signed into law December 22, 2017 by President Trump contained no tax on advertising.
- The taxation and regulation of pharmaceutical advertising: The escalating prices for prescription drugs, along with the growing concern about the volume and distribution of opioid pain tablets, has prompted Members of Congress from both parties to renew the calls for increased oversight of the methods used to market prescription drugs, as well as the amounts that companies charge for these medicines. A number of Senators and Representatives are trying to connect the advertising patterns of pharmaceutical companies to overuse by patients and the general public. The public concerns also have been focused on the amounts charged for these medicines and the aggressive manner in which the advertising is presented.
- Food advertising regulation: Proposals to regulate the advertising of food products to viewers under the age of 18 may see a resurgence in the United States. European countries along with Canada and South American countries are proposing significant restrictions on the advertising of food products that have their parallels in the proposals pushed by Congress and four federal regulatory agencies in 2011. The earlier U.S. regulations were promulgated by the Federal Trade Commission, the Food and Drug Administration, the U.S. Department of Agriculture and the Centers for Disease Control and Prevention.
Who Should Attend:
- Advertising Law Professionals and Practitioners
- Chief Marketing Officers
- Marketing Specialists and Strategists
- Media and Telecommunication Attorneys
- Business and Company Owners
- In-house Counsel
- Public and Private Companies
- Other Related and Interested Professionals
Claudia Vetesi focuses her practice on the defense of consumer class actions, and on complex commercial litigation, including unfair competition, false advertising, privacy issues, contract and licensing disputes, financial services litigation, and trade secrets misappropriation. She regularly counsels clients in the food, retail, financial, and technology industries. She also represents companies in false advertising disputes before the National Advertising Division (NAD) of the Council of Better Business Bureaus, Inc.
Recently, Ms. Vetesi successfully defended a class action lawsuit against a national bank on civil rights discrimination claims. She presented oral argument before the California Court of Appeal, and the case resulted in a published opinion. Ms. Vetesi is also currently defending numerous food and cosmetic manufacturers in class actions and other litigation involving misbranding claims.
Claudia Vetesi focuses her practice on the defense of consumer class actions, and on complex commercial litigation, including unfair competition, …
Jim Davidson counsels companies and business associations on how they can achieve their goals regarding legislation before Congress or regulations and decisions before federal agencies.
For more than three decades, Jim has effectively represented Fortune 500 companies and leading industry groups on issues involving taxation, agency regulations, government information policy, consumer policy, media regulation, privacy, regulation of advertising, health care, appropriations, and budget policy. Jim is also one of the nation's leading authorities on media and advertising law. In 2011, a coalition he directed a broad coalition of multinational companies that successfully prevented four federal agencies from adopting a new standard that would have barred advertising of most food products, including most cereals, whole wheat bread, and low-fat yogurt. Jim directed another coalition that succeeded in preventing the Congress from taxing certain types of advertising to pay for the Affordable Care Act. In April 2012, Reuters described Jim as “one of the most powerful lobbyists in Washington” and “the point man for the advertising industry in free speech issues.”
Jim Davidson counsels companies and business associations on how they can achieve their goals regarding legislation before Congress or regulations …
Sonette counsels clients on various brand protection and policing initiatives, including advertisement compliance with municipal, state, and federal laws. She has represented clients in various false advertising, trademark infringement and deceptive trade practices lawsuits, in both state and federal court. Additionally, Sonette counsels clients on compliance with state and federal labeling laws, particularly federally-mandated ingredient and allergen disclosures, compliance with packaging requirements, FDA compliance, as well as other state and federal regulatory agency requirements. Her extensive trademark experience includes obtaining and maintaining the registration of trademarks on the U.S. Principal Register, responding to office actions, initiating and responding to cancellation proceedings, and other litigation before the U.S. Patent and Trademark Office (USPTO).
Sonette counsels clients on various brand protection and policing initiatives, including advertisement compliance with municipal, state, and federal laws. She …
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Method of Presentation:
Basic knowledge of Advertising Law
NY Category of CLE Credit:
Areas of Professional Practice
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About Morrison & Foerster LLP
With approximately 1,000 lawyers in 16 offices, Morrison & Foerster is a preeminent global law firm dedicated to delivering business-oriented results to clients across the United States, Europe and Asia. Dynamic technology and life science companies, large financial institutions, leading consumer product companies and other market leaders come to MoFo for knowledge, innovation and business aptitude. MoFo handles some of the world’s largest crossborder transactions and resolves major disputes across multiple jurisdictions. The firm has a long-standing commitment to pro bono work and social justice.
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About Lewis Rice LLC
Throughout our Firm’s history, Lewis Rice attorneys have made excellence the foundation of our practice. More than a century of service, since our founding in 1909 in downtown Saint Louis by Joseph Lewis and Charles Rice, gives us the experience, reputation, resources, and vision to serve our clients’ dynamic needs. We provide sophisticated legal counsel and custom-tailored solutions for the challenges facing local, regional, and national businesses.