Advertising Law Blog

Happy holidays! As we enter a new year, Olshan’s Advertising & Branding groups share their list of current hot topics in advertising law. In no particular order (drum roll please), here is our top 10 list:

New York has just passed legislation that has the capacity to be one of the most onerous telemarketing compliance laws. The legislation may potentially impact telemarketers’ outbound calling and data sharing practices.

Olshan Advertising & Marketing attorneys have authored an extensive Q&A, published by The In-House Lawyer which can be used as a general key to the legal framework and issues that surround the pharmaceutical advertising law in the United States.

Businesses that offer gift cards or other pre-paid electronic funds need to be aware of a new potential exposure relating to offering such products.   

Visa has announced that to enable greater transparency, choice, and control for customers, effective April 18, 2020, it is updating its Policy for Subscription Merchants Offering Free Trials or Introductory Promotions.   In an effort to help merchants comply with these new policies, Visa has created a Trial Subscription Quick Reference Card and a Reminder Notice with answers to frequently asked questions.  While not binding as a regulatory matter, compliance with Visa’s policies is important under companies’ merchant processing agreements.

The U.S. Food and Drug Administration (“FDA”) has announced its intent to withdraw its Compliance Policy Guide 400.400 (1988) (“CPG 400.400”) for homeopathic drug products pursuant to which such products have been  permitted to be marketed without having to comply with the new drug, adulteration and misbranding requirements that are otherwise applied to all drug products. Under CPG 400.400, homeopathic drug products were permitted to be manufactured and marketed without the FDA approval applicable to all other drug products.  However, due to certain incidents involving improperly manufactured homeopathic drug products, in 2017 the FDA announced its intention to switch to a risk-based enforcement approach for unapproved homeopathic drug products.

Influencer marketing is one of the most popular marketing tools for companies in today’s market.  Influencers can make substantial sums of money for just one post.  While this is a great way for influencers to earn a living and for companies to get their message across to today’s consumers, there are risks involved with social media marketing if not executed properly.  The Federal Trade Commission (“FTC”), among other responsibilities, works to stop deceptive advertising.  As we have previously reported, everyone involved in social media marketing needs to be sure that influencers comply with the FTC’s Enforcement Guidelines  (the “Guidelines”).

Liu v. SEC will also likely affect Federal Trade Commission’s powers

NCAA Clears The Way For Monetizing Athletes’ Names, Images and Likenesses by 2021

In today’s global marketplace, it is more important than ever for a brand owner to be aware of international considerations while building and marketing the brand in the United States. There are many similarities in the laws across the various jurisdictions in the world, although there are also significant differences, and a brand owner can run into serious or unintended consequences when expanding the brand into other countries. Brand owners should not assume that activities permitted or appropriate in the United States are also permitted and appropriate elsewhere. Many of these issues were discussed recently in Moscow at a conference of international intellectual property lawyers at which I presented, as the United States representative, on a panel entitled “Brand Protection Strategy in the United States and Russia.” The conference was a commemoration of the 60^th anniversary of the Russian law firm Gorrodissky & Partners.