Edited by
Jeffrey D. Knowles 
and
Gary D. Hailey
ANALYSIS
Green Guides May Be Ripe for Release
Almost two years ago, the Federal Trade Commission (FTC) released a draft of its revised Green Guides. Just prior to the release, the FTC provided a preview at the annual National Advertising Division of the Council of Better Business Bureaus (NAD) Conference. History, write Venable partners Amy Ralph Mudge and Randal M. Shaheen in a recent blog post, may be about to repeat itself.
The NAD recently announced the addition of a new panel on its opening day. That panel is called "Environmental Marketing Claims and FTC's Green Guides," and the sole panelist is Jim Kohm, Associate Director of Enforcement for the FTC's Consumer Protection Bureau and guardian of all things green at the FTC. Does this mean that a final version of the revised Green Guides is about to be released? Mudge and Shaheen believe the magic eight ball says "yes."
Click here to read the full post by Mudge and Shaheen on Venable's advertising law blog, www.allaboutadvertisinglaw.com.
Senators Push FTC to Investigate Online "Lead Generators"
A group of Democratic senators is requesting that the FTC investigate third-party online marketing companies – so-called lead generators – used by private-sector schools. Venable attorneys Jonathan L. Pompan and Alexandra Megariswrite in a recent article about the request by Senators Richard Durbin (D-IL), Tom Harkin (D-IA), Frank Lautenberg (D-NJ), and Barbara Boxer (D-CA) sent to FTC Chairman Jon Leibowitz on September 21, 2012. "The FTC can and should take several steps to better protect consumers from deceptive lead generators both by educating consumers and by investigating their practices," wrote the senators.
Click here to read the article by Pompan and Megaris.
Click here to read the senators' letter.
FTC Settlement Takes Pound of Flesh in Weight Loss Testimonial and Substantiation Case
The FTC has just confirmed that a "results will vary"-style disclaimer is not likely to disclaim anything in the eyes of a consumer, write Venable attorneys Randal M. Shaheen and Maura A. Marcheski. Instead, they say that recent action by the FTC demonstrates that marketers must consider the "net impression" their testimonials convey.
Shaheen and Marcheski point to diet plan marketer Medifast, Inc.'s recent $3.7 million settlement with the FTC as evidence of the enforcement shift. The settlement was the result of FTC allegations that marketing claims by Medifast violated a previous settlement order the company entered into in 1992.
The 1992 order, Shaheen and Marcheski write, barred Medifast from making any future unsupported claims about a user's success in achieving or maintaining weight loss. In the recent settlement, the FTC alleged that in 2009 Medifast began running unsupported weight-loss ads across a variety of marketing channels that touted the company's low-calorie meal substitutes, including the "5 and 1" plan. Most of the representations in the advertisements were made using consumer testimonials.
The complaint alleged that Medifast advertised that these consumer endorsers' experiences were typical although Medifast used a disclaimer at the bottom of its advertisements that stated "Results will vary." The FTC maintained that the disclaimer was not sufficient to counteract the "net impression" consumers received from the advertisements, noting that the disclaimer appeared in small type or was spoken quickly.
Shaheen and Marcheski write that the recent Medifast settlement demonstrates that no marketer should place much faith in a "results will vary" disclaimer, and the FTC appears to have laid down a marker for substantiation of weight-loss claims for low-calorie meal replacement products.
Click here to read the full post by Shaheen and Marcheski on Venable's advertising law blog, www.allaboutadvertisinglaw.com.
Click here to read the FTC's press release announcing the Medifast settlement.
"Your Baby Can Read" Case Instructive for Marketers
Venable Partners Jeffrey D. Knowles and Leonard L. Gordon write in the latest edition of the DRMA Voice that the FTC's recent judgment against Your Baby Can Read LLC (YBCR) and executives at the company holds lessons for marketers.
The FTC found that YBCR's claims required "competent and reliable scientific evidence," thus holding the claims for YBCR to the same standard as a health or safety claim. The settlement also bars the company and former CEO from using the term "Your Baby Can Read" in any context, demonstrating that a brand name can sometimes also be a claim.
They write that marketers must often defend products and claims in multiple venues simultaneously (YBCR was the subject of a recent NAD advertising review as well). Mounting concurrent defenses, or planning for the contingency of a future defense in another venue, often requires marketers and their counsel to make strategic decisions different from those that would be made when defending just a consumer class action suit or FTC enforcement action.
The settlement imposes a $185 million judgment, which equals the company's gross sales. Upon the company's payment of $500,000, the remainder of the judgment is suspended based on the company's failing financial condition.
Click here to read the full DRMA Voice piece by Knowles and Gordon.
UPCOMING EVENTS
Association of Corporate Counsel Annual Meeting -
Orlando
September 30-October 3, 2012
Venable is pleased to support and sponsor the 2012 ACC Annual
Meeting. We hope that you will join us at the educational sessions,
where several of our attorneys will share their insights and
recommendations, and at our show floor booth, #307. Venable is also
the 2012 sponsor of the ACC IT, Privacy and E-Commerce Committee as
well as the ACC Nonprofit Organizations Committee.
To view the program, please click here.
Advertising Self-Regulatory Council Annual
Conferences - New York City
October 1-3, 2012
Please join Venable attorneys at this three-day meeting addressing
advertising self-regulation. Venable partner
Amy Ralph Mudge will speak at the Annual Conference of the
National Advertising Division of the Council of Better Business
Bureaus on October 1. The Children's Advertising Review
Unit's Annual Conference will feature a presentation by Venable
partner
Randal M. Shaheen on October 3. Venable attorney
Jonathan L. Pompan will address the Electronic Retailing
Self-Regulation Program Summit on October 3.
For more information, please click here.
International Association of Privacy Professionals
Privacy Academy - San Jose, CA
October 10-12, 2012
Privacy experts are headed to Silicon Valley to receive practical
instruction and meaningful discussion on today's hottest
privacy issues. Venable partner
Emilio W. Cividanes will present "Courtroom
Showdown," a mock trial set in the fictional "Data
Security Breach Tribunal of the United Nations," on October 10
from 8 a.m. to 12 p.m. PDT.
To register, please click here.
34th Annual Promotion Marketing Association
Marketing Law Conference - Chicago
November 12-14, 2012
Venable is proud to sponsor the PMA Marketing Law Conference,
featuring the nation's leading speakers from the Marketing and
Advertising Law Bar and from major brands and prominent regulators.
Venable partner
Melissa Landau Steinman serves as co-chair and will present a
session on gift cards and coupons. Joining her as speakers at the
conference are Venable partner
Roger A. Colaizzi, who will address class action and
governmental investigation defense, and Venable partner
Leonard L. Gordon, whose topic is telemarketing law
enforcement.
Please join Venable at these sessions and at our reception at the House of Blues on November 12.
To register for the PMA Conference, please click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
