Advertising & Marketing

In late June, the Oregon Legislature passed HB 2759, which would amend the state’s existing “do not call” law.  The bill currently is awaiting action by the governor. 

If enacted, the bill would make a person “liable for any loss and subject to any penalty” to the same extent…

Continue Reading Oregon Legislature Passes Update to State Telemarketing Law

On June 30, the FTC announced that it had issued a new notice of proposed rulemaking that addresses fake reviews and testimonials.  The rule prohibits practices the Commissioners have identified as problematic in public statements for the past several years.  For instance, when announcing the review of the Endorsement Guides over a year ago, Chair Khan noted that “consumers’ increasing reliance on online reviews can also incentivize advertisers to harness fake reviews, suppress negative reviews, and amplify positive ones.”  The proposed rule covers a variety of topics including fake reviews, review hijacking, purchasing reviews, employee reviews, review suppression, and the use of fake indicators of social media influence.  Several of the new provisions track principles set forth in prior FTC cases, or target specific practices previously identified in the Endorsement Guides.  Below we’ve summarized the requirements in the proposed rule.  The NPRM will be open for public comment for 60 days once it is posted in the federal register.  As of today, it has not yet been posted.Continue Reading FTC Proposes New Rulemaking Focused on Reviews and Testimonials

This blog post reports on two recent state telemarketing law developments that affect, among other things, marketing calls and text message transmissions.

Maryland Enacts New Law.  Earlier this month, on May 3rd, Maryland Governor Wes Moore signed into law the Stop the Spam Calls Act of 2023, which will take…

Continue Reading Maryland and Florida Update Their Telemarketing Laws

On March 22, 2023, the German Conference of Independent Supervisory Authorities (“SAs”) adopted an opinion on websites that offer users a choice between (i) a free version that tracks users’ behavior or (ii) a (usually paid) version that does not track users’ behavior.Continue Reading German Supervisory Authorities Publish Opinion on (Paid) Subscription Websites

This blog post summarizes recent telemarketing developments emerging from Arizona, Washington, and Maryland.  Arizona recently amended its state telemarketing law to include a new text message restriction.  Washington and Maryland may soon enact more significant updates of their telemarketing laws, including with respect to automated transmissions.  The proposed new law in Maryland is particularly notable, as it seeks to impose the same sort of consent requirements on automated marketing calls and texts that exist now in Florida and Oklahoma.Continue Reading State Telemarketing Updates: Arizona, Washington, and Maryland

On March 23, the Federal Trade Commission (“FTC”) announced a notice of proposed rulemaking that would significantly revise the legal framework governing automatically renewing subscriptions.  The proposal would amend the FTC’s existing Negative Option Rule to provide specific disclosure, consent, and cancellation requirements applicable to all negative options in all media.  The Rule would formalize many of the guidelines from the FTC’s October 2021 Enforcement Policy Statement Regarding Negative Option Marketing (“Policy Statement”) and incorporate new requirements not previously addressed at the federal level such as renewal reminders.  Continue Reading FTC Proposes to Rewrite Negative Option Rule with Expansive Notice of Proposed Rulemaking

On December 9, 2022, the European Commissioner for Justice and Consumer Protection, Didier Reynders, announced that the European Commission will focus its next 2023 mandate on regulating dark patterns, alongside transparency in the online advertising market and cookie fatigue. As part of this mandate, the EU’s Consumer Protection Cooperation (“CPC”) Network, conducted a sweep of 399 retail websites and apps for dark patterns, and found that nearly 40% of online shopping websites rely on manipulative practices to exploit consumers’ vulnerabilities or trick them.

In order to enforce these issues, the EU does not have a single legislation that regulates dark patterns, but there are multiple regulations that discuss dark patterns and that may be used as a tool to protect consumers from dark patterns. This includes the General Data Protection Regulation (“GDPR”), the Digital Services Act (“DSA”), the Digital Markets Act (“DMA”), and the Unfair Commercial Practices Directive (“UCPD”), as well as proposed regulations such as the AI Act and Data Act.

As a result, there are several regulations and guidelines that organizations must consider when assessing whether their practices may be deemed as a dark pattern. In this blog post, we will provide a snapshot of the current EU legislation that regulates dark patterns as well as upcoming legislative updates that will regulate dark patterns alongside the current legal framework.Continue Reading The EU Stance on Dark Patterns

On January 13, the FTC announced a settlement with WealthPress, an online service provider that recommends trades in financial markets.  The settlement resolved allegations that WealthPress violated both the Restore Online Shoppers’ Confidence Act (ROSCA) and Section 5 by making false and misleading claims about how much consumers could earn with the company’s trading recommendation services.  The action is noteworthy for two reasons.  First, building upon the FTC’s prior MoviePass settlement, the FTC’s ROSCA allegations focus not on the terms of the subscription service offered, but rather on the failure to clearly disclose material information about the company’s services.  Second, this is the FTC’s first settlement imposing civil penalties for alleged earnings claims violations predicated upon a Notice of Penalty Offenses issued in October 2021.  The settlement provides for $1.3 million in consumer redress, $500,000 in civil penalties, and injunctive relief.Continue Reading FTC Relies on ROSCA and Notices of Penalty Offenses to Police Deceptive Conduct in Settlement with WealthPress

On November 3, the FTC announced that it entered into a significant $100 million settlement with Vonage to resolve allegations relating to the internet phone service provider’s sales and autorenewal practices. The FTC alleged that Vonage violated both the FTC Act and the Restore Online Shoppers’ Confidence Act (ROSCA) by failing to provide a simple cancellation mechanism, failing to disclose material transaction terms prior to obtaining consumers’ billing information, and charging consumers without consent.Continue Reading FTC Flexes ROSCA Muscle With $100 Million “Dark Patterns” Settlement with Vonage