Ad Law News and Views - June 20, 2024

Ad Law Takes D.C.

Earlier this month, our attorneys from across the country convened in D.C. for a discussion of legal developments in advertising and privacy and Kelley Drye’s Client Service Standards. A couple pictures from the fun-filled days are below.

Chambers

Congratulations to our practices and attorneys who recently received recognition by Chambers and Partners, a research firm headquartered in London, United Kingdom, that produces international rankings for the legal industry.

Ranked practices include:

  • Advertising: NAD Proceedings
  • Advertising: Transactional & Regulatory
  • Privacy & Data Security: The Elite

Ranked attorneys include:

UPCOMING EVENT

SAVE THE DATE for our next webinar in our 2024 State Attorneys General Webinar Series.

June 25 | 2:00 p.m. - 3:00 p.m. ET

Join Kelley Drye’s State Attorneys General Ad Law team in our upcoming webinar led by Chair Paul Singer, Special Counsel Abby Stempson, and Senior Associate Beth Chun.

This month we will have a roundtable discussion on investigations and enforcement actions led by state attorneys general (AGs) and the broad authority the states have to perform pre-litigation discovery through investigative subpoenas, often called ​civil investigative demands or CIDs. We will break down the investigation process and discuss:

  • Common issues that trigger a state – or multi-state – investigation
  • What to expect when under investigation and how to respond
  • Background and caselaw on state AG CID authority
  • Other pre-suit investigative tools available to state AGs
  • Strategies for avoiding a state AG inquiry

Register here.

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The State Attorneys General group is also pleased to announce the pilot of a new newsletter – AG Chronicles – that premiered last week. AG Chronicles serves as a mechanism to keep you informed of upcoming webinars in our State Attorneys General Webinar Series, regular blogposts, and state AG news and developments. We encourage you to subscribe here.

IN THE NEWS AND LATEST UPDATES

Get these and other stories in real time when you subscribe to the Ad Law Access blog here or visit the Advertising and Privacy Law Resource Center here.

FTC Challenges Adobe’s Subscription Practices

Adobe needs no introduction. It makes the software that enables many of our readers to view this complaint and it makes the software that enables many of our non-readers to touch up photos to make themselves appear more attractive than they really are. The FTC doesn’t need any introduction, either. If you read this blog, you probably know that they’re very focused on subscription plans (and you certainly don’t need to resort to trickery to make yourself look more attractive).

NAD Reviews a Song and Dance on a Porch

Jason Momoa moved into a new neighborhood and was sad because his internet hadn’t been connected. Zach Braff and Donald Faison tried to cheer him up, as good neighbors often do, by singing him a song and dancing on his porch. Unlike most neighbors, though, Zach and Donald chose to sing about the joys of T-Mobile home internet. Although they didn’t specifically sing about the company’s Price Lock feature, that feature was advertised on-screen in some versions of the commercial.

A Trademark Dispute Plays Out Before the NAD

Planting Hope had a registration for the RIGHTRICE trademark, but that registration was canceled in January 2024 by the U.S. Patent & Trademark Office (“USPTO”) in a default judgment proceeding after Planting Hope failed to respond to a petition for cancellation. Planting Hope filed a motion to set aside the default judgment, but kept using the registered trademark symbol while that proceeding was pending.

“Junk Fee” Legislative Roundup

For the past several years, state AGs have been ​“checked-in” when it comes to hidden hotel and resort fees. (Revisit our round-up of AG actions against those fees here). To date, these enforcers have largely relied on their standard unfair and deceptive trade practice authority under state consumer protection laws to combat practices like so-called drip-pricing or ​“hidden” fees.

Lessons on Sponsorship Agreements from an Unusual Place

Some have called Joey Chestnut an ​“American hero” for his historic achievements. By ​“some,” I mean the Major League Eating organization. And by ​“historic achievements,” I mean eating 76 hot dogs and buns in ten minutes in 2021. Despite bestowing an honorific on Chestnut that is usually reserved for war veterans (and maybe lawyers recognized by Chambers), MLE has decided to bar Chestnut from competing in Nathan’s Famous Hot Dog Eating Contest this Fourth of July.

NARB Disagrees with NAD on Package Disclosures

Glad advertises that its ForceFlex MaxStrength bags are ​“25% more durable.” More durable than what? If you follow an asterisk, you’ll learn that they are 25% more durable than Glad’s own 13-gallon ForceFlex bags. A competitor – presumably worried that consumers would think that Glad was making a comparison to its bags – brought a challenge before the NAD, questioning whether the basis of comparison was sufficiently clear. NAD didn’t think that was clear, either on the website or on packages. (See our summary here.) Glad appealed the decision with respect to the packages.

Resort to ​“Hidden Fees” and You May End Up with a Heartbreak Hotel

Consumer protection enforcers may be on the lookout for misleading hotel and resort rates and fees this summer travel season. This includes state attorneys general (AGs), who have announced multiple lawsuits and settlements regarding ​“hidden resort fees” in recent years.

NAD Considers the Meaning of ​“Ultimate” Claims

Reckitt Benckiser advertises that its Finish Powerball Ultimate Dishwasher Tablets provide the ​“ultimate clean,” even in the ​“toughest conditions,” and even when you ​“skip the rinse.” In my house, the pre-rinse cycle runs flawlessly on dual-canine technology, but if you don’t have that technology, I can see how these claims may catch your attention. They also caught Procter & Gamble’s attention, and the company filed an NAD challenge focused on the ​“ultimate clean” claim.

Budding Enforcement on Synthetic Cannabinoids

Cannabinoids have been a popular topic of conversation for regulators as the cannabis landscape continues to evolve. Since the days of the tobacco Master Settlement Agreement and related investigations, Attorneys General (AGs) have long focused on protecting minors from health effects of both legal and illegal drugs (see, e.g., here and here). AGs are continuing to use their consumer protection powers in unique ways to protect against alleged misrepresentations relating to THC containing products.