Advertising Laws: 5 Common Mistakes
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Advertising Laws: 5 Common Mistakes Ashley R. Dobbs (703) 526-4701 [email protected] 2300 Wilson Boulevard, 7th Floor Arlington, VA 22201 www.beankinney.com
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Ashley R. Dobbs, Bean, Kinney & Korman, focused on the common advertising mistakes that can get you in trouble with the law. She gave insight on how to effectively advertise without sacrificing legality. The presentation addressed five common advertising mistakes: • Not telling the truth: Inadvertently creating deceptive or misleading messages, or omitting necessary material • Not carefully comparing amongst competitors: Being liable for trademark infringement if done incorrectly • Misusing contests and sweepstakes: Laws in all 50 states regulate these practices • Misusing children's data or medical data: Collecting and targeting the proper data when advertising to kids • Spamming: Statutory damages await those who improperly conduct email advertising campaigns
Transcript of Advertising Laws: 5 Common Mistakes
Advertising Laws: 5 Common Mistakes
Ashley R. Dobbs(703) 526-4701
2300 Wilson Boulevard, 7th FloorArlington, VA 22201
www.beankinney.com
Ashley R. Dobbs Shareholder at Bean, Kinney, and Korman P.C.
8 years in legal practice
Lead BKK’s Intellectual Property practice group: advertising, marketing, brand protection, trademark, copyright, licensing (data, software, trademark, content), sponsorship & merchandising contracts, internet
Clients include businesses and ad and PR agencies
15 years as business and brand marketing consultant, working with advertising and promotion agencies (among others)
Overview
What is “Advertising”? Five Mistakes that can get you into
trouble:1. Not telling the truth2. Not carefully comparing amongst competitors3. Misusing contests and sweepstakes4. Misusing children’s data5. Spamming
Conclusion
What is Advertising?
Traditional media Online or Digital Social Media Out-of-Home Guerilla Closed Circuit In-theater Point-of-Sale
What’s at Risk?
Marketing and advertising expenditure
Corrective advertising PR issues and corrections Cost of defending claims Reputation
5 Common Mistakes:
1. Not telling the truth2. Not carefully comparing
amongst competitors3. Misusing contests and
sweepstakes4. Misusing children’s data5. Spamming
The Truth Will Set You Free
Federal Laws: Lanham Act – false advertising Federal Trade Commission Act –
false advertising and misleading ads
State Laws: Criminal false advertising Trademark laws Consumer Protection Laws
False Advertising Elements Generally speaking:
False or misleading statement; Actual deception or a tendency to
deceive; Likely to influence purchasing
decisions; Interstate commerce; and Likelihood of injury to the
plaintiff (not actual injury).
False Advertising - FTC
FTC also requires evidence to back up any claims made in advertisements
Particular attention to health and safety claims
“Magic Words”
Examples
Kellogg’s Mini-Wheats makes your kids smarter? – FTC complaint
Taco Bell – where’s the beef?
Compare and Contrast
Federal Laws: Lanham Act – false advertising Federal Trade Commission Act – false
advertising and misleading ads Standard:
Identify comparison Be truthful and non-deceptive Don’t be ambiguous
Claims the FTC Rejected “Domino’s oven baked
sandwiches beat Subway’s in a national taste test 2 to 1.”
“Unlike Progresso soups, new Campbell’s Select Harvest soups never contain artificial flavors or MSG.”
“Glad Fabric and Air Odor Eliminator penetrates deeper than Febreeze on carpet.”
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You May Already Have Won! Federal Trade Commission Act
– false advertising State Laws
Every state has different laws Online promotions implicate
every state Violation of Virginia law is a
misdemeanor (Class 3)
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Virginia State Law
Va. Code § 18.2-242: “no retail establishment…shall use any game, contest, lottery, or other scheme or device, whereby a person…may receive gifts, prizes or gratuities as determined by chance for the purpose of promoting, furthering or advertising the sale of any product or products having both a federal and state excise tax placed upon it, and the fact that no purchase is required in order to participate…shall not exclude such game, contest, lottery or scheme from the provisions of this section.”
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Other issues
Coupons Lotteries Sweepstakes Rebates “Daily Deal” Sites
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Misusing Children’s Data
Children’s Online Privacy Protection Act (COPPA): regulates commercial websites and online services that are directed to or that knowingly collect information from children under 13 years old.
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Compliance?
Even if you don’t target children under 13, you may need to comply with COPPA
Requires notice, verifiable parental consent, procedures for removal and correction, and means for specific collection identification
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Examples
Mrs. Fields Cookies ($100,000 fine)
Hershey Foods ($85,000 fine)
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Spamming
Federal “CAN-SPAM” Act prohibits certain unsolicited e-mail mesages
Applies to: any person, including business
entities and nonprofit associations, who initiates a commercial e-mail message- either originates the e-mail or procures the transmission of it 19
Requirements:
Clear notice of the recipient’s right to opt out of future messages
Mechanism for opting out. The opt-out must become effective within 10 business days.
Clear identification that the message is an advertisement or solicitation
The sender’s postal address20
Best Practices
Be accurate. Get permission. Treat competitors fairly. Check your facts. Watch your privacy policies. Check your e-mail marketing
policies.
Ashley R. Dobbs, Esquire
Bean, Kinney & Korman, P.C.
2300 Wilson Boulevard, 7th Floor
Arlington, Virginia 22201
703-526-4701
www.beankinney.com
