Advertising Law Blog

Following the enactment of the European Union’s General Data Protection Regulation (“GDPR”), which went into effect on May 25, 2018, Google has now been fined heavily for violations of the law.  On January 21, 2019, the Commission nationale de l’informatique et des libertés (“CNIL”), the French data privacy authority, fined Google €50 million (approximately U.S. $57 million) for violating the GDPR because it did not properly ask its users for consent to use their data to personalize advertising and because the company makes it too hard for users to find out how their personal information is used and how long that information is stored.  This is the largest financial penalty for a privacy breach in Europe.  

On January 16, 2019, Luxury Daily sponsored its seventh annual Luxury FirstLook conference in New York City, entitled Luxury FirstLook 2019:  Digital Acceleration.  The expert speakers were extremely informative and included senior executives from numerous companies, including, Facebook, Google, Boston Consulting Group, LVMH Moet Hennessy, Lladro, Town & Country, Artsy, Forrester Research, McLaren Automotive, Valmont, Quintessentially, Flont, Armarium, Perrin Paris, L.K. Bennett, Publicis Groupe’s Team One, Martini Media, Vibes, Leading Real Estate Companies of the World’s Luxury Portfolio, Douglas Elliman, Concierge Auctions, Luxury Institute, Customer Experience Group, PMX Agency, Timeless Distributors, Shanker Inc. and Euromonitor.  I was invited to attend as Olshan is legal counsel to Luxury Daily.

New self-regulatory program will actively monitor the direct-selling marketplace

But Don’t Expect the Database Until 2020 at the Earliest

The recently enacted Farm Bill amends the Controlled Substances Act so that  hemp and CBD products containing trace amount of THC are not classified as Schedule 1 controlled substances.    While many are excited about this amendment, the law does not change FDA’s regulatory requirements for CBD-containing products under its regulatory jurisdiction.

FTC must react to Eleventh Circuit’s LabMD ruling

The use of consumer perception surveys before the National Advertising Division (“NAD”) is an important tool for advertisers who are challenging and defending advertisements.  NAD often expresses a wish to see surveys in their opinions, and surveys are one way for NAD to determine the messages conveyed to consumers in advertisements.  On December 7th, the Advertising Self-Regulatory Counsel (“ASRC”) hosted an informative conference on consumer perception surveys which gave insight into the use of such surveys before NAD over the last five years and guidance into what makes a good survey from experts and from the perspective of NAD. 

Many online ecommerce companies operate on a subscription model.  Such companies need to be cognizant of federal and state laws governing advertising and enrollment in continuous service plans.   The failure to consider particular state requirements can have significant consequences given the aggressive plaintiffs’ bar.  A recent federal-court approved settlement between Yahoo Inc. and users of Rivals.com highlights this exposure.  

The FTC heavily relies upon its statutory authority to seek injunctive relief in federal court.  The FTC has broadly interpreted these powers to seek not just injunctive relief enjoining a particular practice, but monetary relief in the form of disgorgement.  Moreover, the FTC has taken the position that defendants in such actions are not entitled to a jury trial, because the relief being sought is merely equitable. 

The FDA and FTC together have recently issued 13 warning letters to manufacturers, distributors, and retailers, cautioning against the sale of e-liquids for use in e-cigarettes using labeling and/or advertising that is similar to that which is found on children’s food products, like juice boxes, candies, or cookies.  The warning letters were sent in furtherance of the FDA and FTC’s efforts to protect young people from the dangers of nicotine and tobacco products.