Ad Law Tool Kit Show

In 2023, the Federal Trade Commission (FTC) identified two junk fees-related practices it wanted to regulate—omitting mandatory charges and fees from advertised prices and misrepresenting the nature and purpose of the charges or fees. States have been active as well. “Junk fees” or “drip pricing” would be replaced by the “total price,” which businesses would be required to clearly disclose. Host Len Gordon and his guests, Venable partner Ellen Berge and associate Jay Prapaisilp, discuss the impact bans on drip pricing might have on businesses, and what marketers should be paying attention to as total price laws come into effect.

For decades, email marketing has been an important tool that businesses use to reach customers. But in recent years, marketers have had to comply with an increasing number of laws enacted to protect a consumer’s privacy and address so-called spam. Host Shahin Rothermel and her guests, Venable partners Ellen Berge and Ari Rothman, discuss what companies should keep in mind as email marketing lawsuits are on the rise.

Negative option marketing can include pre-notification negative option plans, continuity programs, automatic renewals, and free-to-pay conversions. This marketing strategy continues to invite scrutiny from the Federal Trade Commission (FTC), state attorneys general, and class action plaintiffs. Our episode on this topic was the most popular from Season One, so we’re back with an update. Host Len Gordon and his guests, Venable partners Shahin Rothermel and Ari Rothman, discuss the keys to success in avoiding investigations and liability.

Telephone and text marketing is ubiquitous these days. But those tools also pose private litigation risks and regulatory hurdles that marketers should be aware of at the outset of any campaign. They involve legal and regulatory complexities, including do-not-call laws enforced by the FTC, FCC, and states. Host Shahin Rothermel and Venable partner Ari Rothman talk about how litigation often concerns consent for autodialed calls and texts. State laws may broaden rules, causing uncertainty regarding reassigned numbers. 

State attorneys general (AGs) are the chief legal officers of their states, and their areas of concern are vast. Aggressive enforcement against telemarking, debt relief, privacy violations, and charity fraud can generate goodwill with an AG’s state residents. Compliance with laws, prompt complaint resolution, and proactive engagement with AGs are crucial. Host Len Gordon and his guest, former Venable partner Alex Megaris, go over how businesses facing AG inquiries should retain documents, negotiate confidentiality agreements, and focus efforts on smaller AG committees in multi-state actions to manage these probes effectively.

Title III of the Americans with Disabilities Act (ADA) prohibits disability discrimination in public accommodations. But whether it applies to websites differs by location. California exempts online-only businesses, for example, but elsewhere, offering online goods or services can mandate compliance. Host Shahin Rothermel and her guests, Karel Mazanec and Nick Reiter, discuss recent court decisions that provide defenses against generic lawsuits, stressing specific injury claims. The explosion of online commerce has forced the question: How does Title III apply to websites? 

Maintaining a robust copyright portfolio is crucial for brand owners. Copyright is a universe almost as big as Marvel’s, covering materials from ad copy to music and social media posts. Host Len Gordon and Venable partner Justin Pierce talk about how it's vital to secure ownership rights through agreements, clear third-party content, register copyrights, and have work-for-hire contracts. Staying updated on copyright trends and checking insurance coverage are essential for comprehensive copyright protection.

Advertisers increasingly view social media as an opportunity to have influencers speak positively about their products and services. But the Federal Trade Commission (FTC) has made it clear that rules regarding disclosure of material connections also apply in the social media context. Host Shahin Rothermel and her guest, Venable partner Melissa Steinman, go over guidelines that include straightforward declarations like "X Company gave me a free product" or hashtags like #ad, emphasizing upfront, noticeable disclosures. Specific rules apply for different content formats, urging companies to monitor and educate employees and third-party implementers to prevent regulatory issues.