Manatt’s Advertising, Marketing & Media Practice Receives National Ratings for Excellence in Chambers USA 2015
Manatt’s Advertising, Marketing & Media practice was once again recognized as one of the nation’s leading practices for both advertising litigation and transactional work in Chambers USA: America’s Leading Lawyers for Business.
In addition to the stellar practice ratings, four of Manatt’s advertising lawyers were individually ranked as leading lawyers: Linda Goldstein, Jeffrey Edelstein, Marc Roth and Thomas Morrison.
Chambers praised Manatt’s advertising team, noting its “reputable advertising practice with strong transactional and litigation capabilities, which offers clients a cradle-to-grave approach to handling matters.” It also highlighted the group’s exceptional service and responsiveness to clients.
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Marc Roth Invited to Speak at Hot Topics in Advertising Law, June 3
Manatt partner Marc Roth will participate as a panelist at the annual Hot Topics in Advertising Law 2015 seminar hosted by the Practising Law Institute on Wednesday, June 3.
In an interactive session titled “Sweepstakes and Promotions in Advertising Campaigns,” Marc and his co-panelists will present a hypothetical promotion designed to highlight compliance issues. They will also explore unique sweepstakes and promotions issues such as privacy, third party branded prizes, and social media notifications.
The seminar will be held in New York, NY, and will broadcast live to locations in Pennsylvania, Georgia and Ohio. For more information or to register for this event, click here.
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DAA Mobile Privacy Code Enforcement Begins In September
Get ready: September 1 marks the beginning of enforcement of the Digital Advertising Alliance’s mobile privacy code, the group recently announced. Companies will be required to provide consumers with an opt-out mechanism for targeted ads based on data collected across mobile apps.
“The incredible explosion of free apps and services we’ve seen in the mobile space has been driven in large part by interest-based advertising,” Stu Ingis, DAA General Counsel, said in a statement. “By launching enforcement of the DAA Principles in the mobile space, we are helping ensure that consumer trust can grow and thrive through independent enforcement of those standards.”
In 2013, the DAA issued the Application of Self-Regulatory Principles to the Mobile Environment, the group’s rules for privacy in the mobile ecosystem. Intended to complement the DAA’s preexisting Self-Regulatory Principles for Online Behavioral Advertising, the mobile version mandated that ad networks and other companies notify consumers about cross-app advertising and provide an app with an opt-out mechanism. Opt-in consent is required before marketers can collect geolocation information and data from a consumer’s address book.
Earlier this year, the DAA released AppChoices, an app for mobile opt-outs and has set September 1 as the compliance deadline.
The two-year gap was intended to provide businesses with enough time to prepare for compliance, the DAA said. “We give companies a reasonable amount of time to make sure that everything’s in order,” DAA executive director Lou Mastria told MediaPost.
Enforcement will be implemented by the Council of the Better Business Bureaus in cooperation with the Direct Marketing Association, by proactively monitoring cross-app advertising as well as responding to complaints.
The CBBB and DMA work with companies found to be in violation of the DAA Principles, although the self-regulatory entities could take additional actions by referring the violator to the Federal Trade Commission (or in the case of SunTrust Bank, the Consumer Financial Protection Bureau) by publicly explaining the nature of the compliance issue and its resolution.
To read the DAA’s mobile guidance, click here.
Why It Matters: Beginning September 1, companies that collect and use data across sites or apps for interest-based advertising will be required to demonstrate compliance with the DAA’s Mobile Guidance. “This marks an important milestone in expanding our ability to provide a consistent consumer experience through independent accountability of our technology-neutral, privacy-friendly Principles to devices and platforms on-the-go consumers increasingly use,” Mastria said in a statement. “By extending our accountability program into the mobile application space and creating new web- and app-based tools, we have created a robust and enforceable industry-wide regime that covers existing and emerging technologies in the evolving multi-screen world.”
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Fitbit Can’t Sleep On False Advertising Suit Over Sleep Measurement Claims
Fitbit may accurately track exercise and other fitness and physical activity with its wearable fitness devices, according to a new putative consumer class action, but the models purporting to measure a user’s sleep are alleged to violate California’s false advertising law.
James P. Brickman alleges that Fitbit “has made specific advertisement claims that for an extra charge, the customer can purchase a device which also contains a ‘sleep-tracking’ function which will track ‘how long you sleep,’ ‘the number of times you woke up,’ and ‘the quality of your sleep.’ In fact, the sleep-tracking function does not and cannot do these things.”
Fitbit’s sleep-tracking device advertises that it can “measure sleep quality,” with data and graphs to reveal how long a user slept and the number of times a user woke up. The functional displays purport to identify exact times with specific numbers of actual sleep time and restless minutes, among other data.
But the $30 add-on feature (found in the Fitbit Force, the Fitbit Flex, and the Fitbit Ultra, among other models) is based on “accelerometer” technology, which Brickman says a 2012 study showed fell “far below an acceptable standard of accuracy to render it useful in any way for scientific purposes.” As compared to the more accurate forms of sleep-tracking technology, polysomnography and actigraphy, Fitbit overestimates a user’s sleep time anywhere from 67 to 43 minutes, respectively.
“Despite Fitbit, Inc.’s specific representations that the Fitbit sleep-tracking function can and does track and provide precise and accurate numbers, down to the minute, of how much sleep a user gets, the Fitbit sleep-tracking function simply does not and cannot accurately provide these numbers,” Brickman, who bought a Fitbit Flex in 2013, alleges.
This “egregious overstate[ment]” of the ability of the Fitbit sleep-tracking function to perform as advertised “implicates serious health concerns,” the suit added, “as thinking you are sleeping up to 67 minutes more than you actually are can obviously cause health consequences, especially over the long term.”
For alleged violations of California’s false advertising law, unfair competition law, breach of warranty, unjust enrichment, and common law fraud, the putative nationwide class seeks restitution as well as compensatory and punitive damages.
To read the complaint in Brickman v. Fitbit, Inc., click here.
Why It Matters: In a statement, Fitbit said it intends to “vigorously defend” the lawsuit. “We do not believe this case has merit,” the company said. “Fitbit trackers are not intended to be scientific or medical devices, but are designed to provide meaningful data to our users to help them reach their health and fitness goals.” The company—which has faced criticism before about product accuracy—emphasized that the consistent tracking of an individual’s trends provides value to a consumer even if the data is not 100 percent accurate.
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Not So Gray Area: FTC Takes Action Against Dietary Supplement Marketers
After a referral from the National Advertising Division, the Federal Trade Commission took action against two marketers of dietary supplements claiming to prevent—or reverse—gray hair with products containing the enzyme catalase.
Claims for GetAwayGrey included: “Watch your grey go away! Now, grey hair can be stopped and reversed. We stop grey hair by using a vitamin that includes the Catalase enzyme. Just two vitamin pills a day can bring back your natural hair color,” while codefendant Rise-N-Shine touted its Go Away Gray with statements such as “All Natural Hair Color Restoration For ALL Hair Types. Helps PREVENT & REVERSE Gray Hair. PROMOTES Thick, Healthy Hair.”
In addition to the dietary supplement, Rise-N-Shine also offered a shampoo and hair conditioner containing catalase (ranging from $29.95 to $69.99 per bottle).
But according to the FTC’s complaints, both companies (and their principals) violated Section 5 of the Federal Trade Commission Act because all of the claims were false and unsubstantiated.
In proposed consent orders, the defendants are prohibited from representing that a covered product (defined as “any dietary supplement, food, drug, or cosmetic”) either reverses or prevents the formation of gray hair. Also banned are claims about the health benefits, performance, or efficacy of covered products (unless the claim is non-misleading and the defendants have competent and reliable scientific evidence to substantiate it). The defendants must also retain records of human clinical testing that they submit as competent and reliable scientific evidence.
An almost $4 million judgment against the companies and their principals will be suspended pending compliance with the proposed order.
Litigation continues against a third company, COORGA Nutraceuticals and its principal over the marketing of a product line called “Grey Defence.”
To read the complaint and proposed consent order in FTC v. GetAwayGrey, click here.
To read the complaint and proposed consent order in FTC v. Rise-N-Shine, click here.
Why It Matters: “These companies claimed their supplements could treat gray hair at its roots,” Jessica Rich, Director of the FTC’s Bureau of Consumer Protection, said in a statement about the action. “In fact, their root problem was a lack of evidence for their claims.” In addition to reminding advertisers to base health claims on competent and reliable scientific evidence, the actions provide an example of what can happen when the NAD refers a case to the agency.
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Bus Company Stops Campaign After Ads Fuel Controversy
In the latest example of an advertising campaign igniting a social media firestorm, a bus company has halted an advertising campaign intended to appeal to “the younger generations.”
Black-and-white photographs of naked men and women holding a sign reading “Ride Me All Day for £3” appeared on the back of New Adventure Travel (NAT) buses in Wales. When the ads hit the Internet, the company faced serious criticism.
A Member of Parliament took to Twitter to ask the company, “Please can you explain how your advert is in any way appropriate?” while others called the campaign “terrible marketing” and “a great ad to ensure” that consumers will not ride the buses.
In addition to announcing that it would end the ad campaign, NAT also apologized, explaining that it was trying “to make catching the bus attractive to the younger generations.”
The “ride me” slogan “whilst being a little tongue in cheek was in no way intended to cause offence to either men or women and, if the advert has done so then we apologise unreservedly,” the company stated. “There has certainly been no intention to objectify either men or women. Given the volume of negativity received we have decided to remove the pictures from the back of the buses within the next twenty four hours.”
Why It Matters: For marketers, an ad campaign making waves on social media can prove immensely profitable, or as in the case of the NAT ad snafu and other examples—like Bud Light’s label statement backlash or Samsung’s promotion of a selfie taken by David Ortiz with President Barack Obama—could lead to negative publicity for the company.
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