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Last week, the Federal Trade Commission (FTC) convened a
day-long public workshop to discuss updating its "Dot Com
Disclosures" guidance on presenting online advertising
disclosures, write the members of Venable's Privacy and Data Security practice in a recent
post on Venable's advertising law blog, www.allaboutadvertisinglaw.com.
The FTC is considering whether it should overhaul this guidance,
which dates to 2000, to address current trends such as social media
and mobile advertising. The workshop also included a panel devoted
to mobile privacy disclosures. Newly confirmed Commissioner Maureen
Ohlhausen kicked off the event by explaining that the FTC does not
intend to expand its Section 5 authority, which empowers the FTC to
investigate deceptive trade practices, but wants to shed light on
how existing legal principles should apply to new technologies.
Mary Engle, the head of the FTC's Advertising Practices
Division, told participants that new technology platforms should
adapt to existing legal principles, not the other way around. But
discussion at the workshop highlighted the challenges of reaching
this goal in a way that is technically feasible and does not
detract from users' experience.
Oreck Coughs Up $700K Over Virus, Bacteria, Mold, and
Allergen Claims
Venable partner Gregory J. Sater writes in a recent edition of
the DRMA Voice that the FTC recently announced it was
mailing more than 27,000 checks totaling almost $700,000 in
restitution to customers who purchased Oreck's Halo vacuum
cleaner or ProShield Plus portable air cleaner during a window of
time when, according to the FTC, Oreck's advertisements for
those products were false or deceptive.
According to the FTC, Oreck's advertising and marketing
materials misrepresented, either "expressly or by
implication," that these products would prevent or
substantially reduce the risk of catching the flu and that they
would prevent or substantially reduce the risk of other illnesses
caused by viruses, bacteria, molds, and allergens. The
advertisements also claimed that the products would eliminate all
or virtually all common germs and allergens.
The FTC also alleged that Oreck conveyed the claim that some of
the foregoing benefits were proven by scientific lab testing.
According to the FTC, however, Oreck's testing was not
"competent and reliable scientific evidence."
Unfortunately, writes Sater, when the FTC settles with an
advertiser, the FTC usually doesn't reveal what kind
of testing the advertiser did have; nor does the FTC reveal
exactly why, in its eyes, the advertiser's testing
wasn't good enough. That, he says, makes it difficult for
marketers and their attorneys to understand what, exactly, Oreck
did or did not do.
NAD Tells Ocean Spray That Taste Test Messages Are No
Laughing Matter
The National Advertising Division of the Council of Better
Business Bureaus (NAD) doesn't have much of a sense of humor
when it comes to taste tests, write Venable partners Amy Ralph Mudge and Randal M. Shaheen in a recent post on
Venable's advertising law blog, www.allaboutadvertisinglaw.com.
The post discusses a recent NAD decision concerning an Ocean
Spray television commercial featuring two cranberry growers who
announce they are "doing a taste test" for "Ocean
Spray cranberry juice versus vegetable juice."
After tasting the cranberry juice, one grower smiles and says
"tasty." As he is bringing the bottle of vegetable juice
to his lips, the other grower states, "Now the vegetable
juice...with more than 10 times the sodium of cranberry
juice." The grower holding the vegetable juice bottle then
decides not to drink it, pours it out into the bog, and proclaims
"We have a winner," as he raises the bottle of cranberry
juice.
Mudge and Shaheen write that, although NAD characterized the
commercial as "perhaps, tongue-in-cheek," it determined
that the language "We're conducting a taste test"
coupled with the visual of the second grower tasting Ocean
Spray's product and then declaring it "tasty" and the
"winner" conveyed a superior taste test message requiring
substantiation. Their post details the reasons that NAD determined
Ocean Spray's taste test evidence was "insufficiently
reliable" to justify the implied superior taste message, and
provides other insights into why NAD took exception to the juice
marketer's advertisement.
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Last week, by virtue of a 63-30 procedural vote, the Senate moved forward with a bill called the Marketplace Fairness Act, with a final Senate vote set for May 6, according to The Wall Street Journal.
Corporate tweeters or bloggers – employees who post promotional and often entertaining commentary on behalf of their employers’ businesses – add much of their own personal brand – their voice, their opinions, their snarky remarks – to the information they are disseminating on the company’s behalf.
No blog can really take itself seriously unless it's written about Lindsay Lohan. Plus our Marketing Department claims she'll do wonders for our search rankings.
In a First Report and Order, Further Notice of Proposed Rulemaking and Notice of Inquiry released at the end of March in a proceeding begun in 2003, the Federal Communications Commission continued its comprehensive review of its rules, policies and procedures governing radiofrequency radiation and limits on exposure to human beings.
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Gary D. Hailey 
