Edited by Jeffrey D. Knowles and Gary D. Hailey

Tools

Put Venable's Knowledge at Your Fingertips

Advertisers, marketers, and their service providers are under intense scrutiny from federal and state regulators, as well as plaintiffs' attorneys. Today, even the most innocuous-seeming action can create regulatory risk. To help marketers navigate this environment, Venable has created the "Advertising Law Tool Kit," a handy set of checklists to help manage risk in areas such as advertising claims, online disclosures, green claims, and brand protection. In addition to the checklists, each section of the Tool Kit provides deeper context by linking to recent articles, alerts, and white papers about that area of law written by Venable attorneys.

Although it cannot replace fact-specific legal advice, the Tool Kit can help marketers identify potential issues before they become very real problems. Look for new editions in coming months as the Tool Kit is updated and expanded.

Click here to explore the online version of the Tool Kit or to download a printable version of the document.

Click here if you would like to suggest a topic for a future Tool Kit section or provide feedback on the Tool Kit.

Analysis

Think Marketers Aren't Responsible for Affiliates? Think Again

Using affiliate marketers to promote a product online can be an attractive proposition for marketers. They are aggressive, buy media on their own dime, are paid only if they produce conversions, and operate at arms' length. However, Venable partners Jeffrey D. Knowles and Gregory J. Sater write in the October edition of Response magazine, a recent decision by the Tenth Circuit Court of Appeals has changed that calculus. One implication of the case, which concerns among other things the purchase of certain Google keywords, is that marketers can now be held responsible for the advertising practices of the affiliates promoting their products.

Click here to read the full text of the article and learn what steps a brand should take to ensure its affiliates are not creating legal exposure, in addition to sales.

New York AG Unplugs Fake Online Reviews

Online reviews are a powerful driver of sales. By some accounts, they influence the purchasing decisions of up to 90 percent of consumers. This power creates a strong temptation for marketers, or their service providers, to create bogus reviews, writes Venable partner Leonard L. Gordon in a recent post to Venable's advertising law blog.

The power of such reviews and the prevalence of fake reviews led the New York Attorney General's office to investigate and crack down on companies posting fake online reviews. Last week, the AG's office announced a major enforcement action that included 19 companies involved in the practice and imposed more than $350,000 in fines.

Click here to read Gordon's analysis of the enforcement action in his post to Venable's advertising law blog, www.allaboutadvertisinglaw.com.

Click here to read the New York AG's press release announcing the enforcement action.

NAD Serves up Decision on Whole Grain and Fiber Claims

Few things will land an advertising claim before the National Advertising Division (NAD) faster than tapping into a hot industry trend, write Venable partners Amy Ralph Mudge and Randal M. Shaheen in a recent post to Venable's advertising law blog. Take, for example, Barilla's recent challenge to "whole grain" and "fiber" advertising claims Ronzoni made for its Healthy Harvest pasta.

In its decision, NAD cited the Food and Drug Administration's (FDA) draft guidance on whole grain claims and concurred that such claims can give consumers false messages as to how much nutrient content a food contains. However, the self-regulatory body concluded that it would not prohibit Ronzoni's claims absent specific evidence that consumers take away a false message that Barilla's product contains less fiber.

This matter, Mudge and Shaheen write, demonstrates just how messy all types of implied claims – not just those for food – can become.

Click here to read the full text of Mudge and Shaheen's analysis of the Ronzoni challenge on Venable's advertising law blog, www.allaboutadvertisinglaw.com.

Click here to read NAD's press release about the decision.

Click here to read the full text of the FDA's draft guidance for whole grain claims.

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.