OBA Principles Have Gone Native!

This post was written by Matthew Y. Kane and John P. Feldman.

Last week, the Interest-Based Advertising Accountability Program (Accountability Program) released a compliance warning regarding the use of online-behavioral advertising (OBA) in conjunction with native advertisements. The compliance warning states that native advertisements tailored to a consumer based on the consumer’s browsing history (i.e., OBA) must comply with the Self-Regulatory Principles for Online Behavioral Advertising (“OBA Principles”), just like any traditional-based advertisement utilizing OBA would. Enforcement of the compliance warning will begin January 1, 2015.

The Accountability Program was developed by leading industry associations in order to regulate online behavioral advertising across the Internet. The Program issues compliance warnings to provide guidance on how to comply with the OBA Principles. The two key pillars of the OBA Principles are transparency and consumer control. The transparency principle requires companies to ensure that consumers are aware when their data is being collected for OBA purposes. The consumer control principle requires companies to provide consumers with an easy-to-use mechanism to opt out of having their data collected.

Companies, whether displaying native advertisements or traditional-based advertisements, must take the following steps if the advertisements are served in connection with OBA: First, provide “enhanced notice” to consumers that the advertisement is being tailored to the consumers, based on their browsing habits. The notice should be in the form of a link in or around the ad while the consumers are actually viewing the ad. The link should take the consumer to a landing page where the consumer can learn more about OBA and have the ability to opt out (it should be noted that companies often use the familiar Advertising Option Icon AdChoices Iconto fulfill the notice requirement). The information provided by the link landing page (including the opt-out mechanism) should also be on the company's own website. And second, the company must provide consumers with a functional, easy-to-use way of opting out of the collection and use of their data. It should further be noted that website publishers who allow third parties to collect data for OBA purposes on their websites must provide notice of that data collection (whether the ad being served is a native ad or a traditional-based ad).

For more information on staying compliant and avoiding potential FTC action, read our previous blog post covering this issue.

FCC Rings the Bell for Public Comments Regarding Robocalls and Call-Blocking

The FCC is asking for comments on a letter it received from the National Association of Attorneys General that seeks out the Commission’s opinion on the legality of telephone carriers implementing call-blocking technology to reduce the amount of unwanted telemarketing calls.  If your company engages in marketing over the telephone or uses it to regularly conduct business with customers, you may want to consider getting involved.  Comments are due December 24, 2014, and reply comments are due January 8, 2015.  For more on this, please read the latest post on our Global Regulatory Enforcement Law Blog.

ABA Event - Operation Full Disclosure: What You Need to Know About TV and Print Disclaimers

In case you missed last week's Association of National Advertisers webinar covering the FTC’s Operation Full Disclosure, please join John Feldman of Reed Smith and Michael Ostheimer of the FTC’s Division of Advertising Practices on Monday, December 1, 2014, as they present on a program entitled, Operation Full Disclosure: What You Need to Know About TV and Print Disclaimers, hosted by the American Bar Association (Section of Antitrust Law).

Find out what Operation Full Disclosure means to you and your clients, and learn about the Commission's ongoing efforts to educate the industry on proper disclosure practices as well as potential enforcement activities.


Date and Time:
Monday, December 1, 2014
2:00 p.m. - 3:00 p.m. ET

ABA Antitrust Section Members, Government, Non-Profit Employees and Students - Free
ABA Members - $10.00
Other Non Members - $25.00

The FTC's Operation Full Disclosure: What You Need to Know

Don’t miss out on your chance to learn how the FTC’s Operation Full Disclosure can affect you. Join us November 18 at 1:00 p.m. ET for the complimentary webinar, "The FTC’s Operation Full Disclosure: What You Need to Know." Led by John P. Feldman, partner at Reed Smith LLP, and Michael Ostheimer, staff attorney in the FTC’s Division of Advertising Practices, the webinar will cover ways to ensure all ads are complying with the FTC’s standards, the latest on the commission’s ongoing efforts to educate the industry on proper disclosure practices, and what to expect in the coming months with regard to enforcement.

This webinar is part of a series of complimentary webinars from the ANA Government Relations group focused on legal and regulatory issues currently affecting the marketing community.

For more information or to register visit ana.net.

Stay in Tune with SAG-AFTRA

Join us for the Join Policy Committee's Chicago Town Hall Meeting, hosted by Talent Partners.  Topics include:

  • Resolution of SAG-AFTRA CBA Issues
  • Overview of the Audit Process
  • Recent SAG-AFTRA Arbitrations
  • Ad-ID
  • Discussion of the Experimental Waiver for "Made Fors”
  • AFM Update

Tuesday, November 4, 2014
10:00am - 10:30am - Breakfast and networking
10:30am - 12:00pm - Chicago Town Hall Meeting

Talent Partners
400 N. Michigan Avenue, 14th Floor
Chicago, IL  60611

Register Now:
RSVP directly to Denise Busa at Talent Partners.

Today's Hot Topic: Controversial Issues in Advertising

From time to time I like to remind clients of specific network guidelines to keep in mind when developing advertising. One such guideline involves controversial issues of public importance in advertising, also known as advocacy advertising.

Per the network guidelines, the networks will not sell time for advertising that presents a partisan position on a controversial public issue. This policy is not intended to apply to the sale of time to political candidates, to those authorized by candidates to buy time on their behalf, or to political parties.

A controversial issue is a serious matter that has an impact on society or its institutions, and regarding which different segments of the community have strongly opposing positions. This policy does not preclude mere references to a societal problem, where there is consensus as to the existence of the problem. However, the policy would ordinarily preclude partisan discussion of answers or solutions to the problem because typically they are a matter of debate or a difference of opinion.

Continue Reading...

Viewer Discretion Is Advised - UK to Apply Film Ratings to Music Videos

The British Board of Film Classification (BBFC), the body long responsible for providing ratings on theatrical films in the UK, recently launched a voluntary pilot program designed to protect children from watching inappropriate content whereby music videos would receive film-style age ratings, quite possibly signaling first step towards regulating music videos.  Under the program, certain UK record companies, including Sony, Universal and Warner will submit music videos that are intended for a "12 and above" audience to the BBFC, and subsequently it would issue a rating for the video per its Classification Guidelines: 12, 15 or 18.  For additional details on the BBFC’s new program, read our firm’s latest client alert.

'Full Disclosure' Provides Advertisers with Opportunity to Fix Inadequate Disclosures

Advertisers, read our firm’s latest client alert on the FTC's Operation Full Disclosure to learn about what your company can do to meet the FTC's "clear and conspicuous" requirements.  Take advantage of this opportunity to closely review and remedy any inadequacies in your advertising disclosures before more aggressive steps are taken by the FTC and the plaintiffs’ class action bar.

FAA Approves Limited Drone Use in Film and TV Production

On September 25, 2014, the Federal Aviation Administration announced its approval of limited commercial use of drones for film and TV production.  The entertainment industry sees this as a leap in the right direction for competing with international markets where commercial use of drones is growing.  Consider the implications of this approval.  What other commercial uses might arise?  How does this change the advertising and media marketplace?  Read our recent client alert to see if sky's the limit.

Fred Meyer Guide Revisions Are Friendly Reminder to Suppliers to Check Their Current Practices

This post was written by Keri Bruce and Hilary St. Jean.

Last week, the Federal Trade Commission (“FTC”) approved final changes to its Guides for Advertising Allowances and Other Merchandising Payments (the “Guides”), also known as the Fred Meyer Guides.  The Guides were originally issued in 1969, and subsequently revised in 1990, to help businesses comply with sections 2(d) and (e) of the Robinson Patman Act (the “Act”).  The Act generally prohibits certain forms of price discrimination between suppliers and the merchants who resell their products.  Sections 2(d) and (e), which are the focus of the Guides, are designed to prohibit disguised price discrimination in the form of promotional payments or services.  In other words, a supplier is prohibited from paying allowances or furnishing services to merchants to promote the resale of the supplier’s products, unless the allowances or services are offered to all competing merchants on proportionally equal terms.  The Act aims to help small businesses compete against chain stores by prohibiting anticompetitive price discrimination by suppliers, and certain other kinds of business discrimination.  In December 2012, the FTC sought public comment on the Guides, and input on the overall costs and benefits and continuing need for the Guides.

In response to the comments solicited, the FTC approved moderate changes to the Guides in order to update them with respect to current technological developments, changes in marketing methods (such as widespread online marketing), and FTC enforcement priorities. The changes also reflect jurisprudential developments since the last revision of the Guides.

All of the comments provided to the FTC indicated a continuing need for the Guides.  The following list is a general summary of the changes to the Guides. For additional information, read the Federal Register, which details the comments received and the FTC’s final changes.

Changes to the Guides (effective November 10, 2014):

  • General:  The FTC added references to the Internet to the lists of promotional media dispersed throughout the Guides to address and account for new methods of commerce associated with the growth of the Internet since the Guides were revised in 1990.
  • Section 240.7 (Services and Facilities).  This section of the Guides identifies the types of services and facilities offered to merchants covered by sections 2(d) and 2(e) of the Act.  This section has been modified to provide an example of how to distinguish between services and facilities that are offered for a product’s initial sale to the merchant seller versus its resale to the end consumer. The following new example was added:

    Example 1: A seller offers a supermarket chain an allowance of $500 per store to stock a new packaged food product and find space for it on the supermarket’s shelves, and a further allowance of $300 per store for placement of the new product on prime display space, an aisle endcap. The $500 allowance relates primarily to the initial sale of the product to the supermarket chain, and therefore should be assessed under section 2(a) of the Act. In contrast, the $300 allowance for endcap display relates primarily to the resale of the product by the supermarket chain, and therefore should be assessed under section 2(d).

Two additional examples were added to this section to address whether special packaging or package sizes are for promoting a product’s resale versus its initial sale.

Continue Reading...

REMINDER: Catch Up with SAG-AFTRA - Town Hall Meeting in Atlanta

This is a reminder to please join us next week on Tuesday, October 7, for the Joint Policy Committee’s Atlanta Town Hall Meeting, sponsored by 22squared.   

A new arbitration decision was received last week and will be discussed.  Our discussion will also include:

  • Resolution of the SAG-AFTRA CBA Issues
  • Overview of the audit process
  • Recent SAG-AFTRA arbitration
  • Ad-ID
  • Discussion of the Experimental Waivers for Made Fors
  • AFM update

Register Now:
RSVP to Aaron Kooden at aaron.kooden@22squared.com (space is limited)

Date and Time:
Tuesday, October 7th
9:30 - 10:00 am:  Breakfast
10:00 am - 12:00 pm:  Stacy Marcus, JPC Atlanta Town Hall

1170 Peachtree St NE, 14th Floor
Atlanta, GA 30303
Map and Directions

Brand Owners: Do You Know Your Social Media Ownership Rights?

A recent district court case reminds companies and brand owners to establish clear guidelines or contractual rights with respect to brand-related social media pages’ administration and ownership.

Plaintiff Stacey Mattocks independently ran an un-official Facebook fan page which focused on the TV show the “Game”.  After Black Entertainment Television network (BET) acquired rights to the TV show, it hired Mattocks to promote and grow the brand on the page and provided exclusive content and IP to Mattocks.  During Mattocks’ employment, the number of page “likes” grew from 2 million to 6 million. Mattocks had granted BET full access to the page to update content but later, during a dispute involving Mattocks’ terms of employment, Mattocks demoted BET’s ability to access the page without her approval and claimed ownership of the page.  BET approached the social media platform to regain control and Mattocks filed suit for various claims against BET (such as breach of contract and tortious interference with contract).  

While social media platforms offer certain protections to companies and some include official or verification procedures, this kind of litigation and expense could have been avoided with more careful planning with respect to allocation of rights and ownership up front. For additional details on the case and the measures companies should take to assure their ownership rights, please read the latest post on our firm's Employment Law Watch blog. 

FTC Warns More Than 60 National Advertisers in 'Operation Full Disclosure'

This post was written by Sulina D. Gabale and Stacy K. Marcus.

In letters sent to more than 60 companies, including 20 of the top 100 TV and print advertisers in the country, the FTC warned companies to review specific ads to ensure their disclosures are “clear and conspicuous,” and that they comply with federal advertising regulations.

In a press release on Tuesday, the FTC explained the initiative – Operation Full Disclosure – as the agency’s latest effort to guide companies to follow proper disclosure standards and avoid misleading consumers. Specifically, the agency targeted disclosures made in fine print or that were easy to miss by the average consumer. The FTC explained that disclosures should be in proximity to the claims to which they relate and in easy-to-read font color, size, and style, so consumers have access to all relevant information. For TV ads, disclosures “should be on the screen long enough to be noticed, read, and understood, and other elements in the ads should not obscure or distract from the disclosures.”

The FTC is keeping the names of those companies targeted secret in an effort to allow them a chance to adhere to disclosure laws. However, without getting too specific, the agency hinted toward recurring problems. For example, the FTC explained in some ads, “the advertiser claimed that a product was unique or superior in a product category, but did not adequately disclose how narrowly the advertiser defined the category, while other comparative ads did not adequately disclose the basis of their comparisons.”

What does this mean for other advertisers?  Though the letters only addressed certain companies, the initiative is essentially a warning shot signaling others to follow suit. The FTC cautioned, “advertisers who did not receive a letter should not assume that their advertisements are fine.”

While Operation Full Disclosure may act as just a warning, here are a few things that advertisers should keep in mind:

  • Don’t bury the details – disclosures must be in unambiguous language, clear and conspicuous, and placed in proximity to relevant claims
  • Focus on the font – disclosures should appear in a font that is easy to read and in a size and shade that stands out against the background
  • Disclose all conditions, terms, and limitations

Operation Full Disclosure has so far been limited to TV and print ads; however, crackdown over online advertisements may be just around the corner, following the FTC’s recent “.com Disclosures” guidelines published in March 2013.

Transformative Use: Danger Is in the Definition

This post was written by Hilary St. Jean and Brad R. Newberg.

In April, 2013 the 2nd Circuit concluded that certain works of the well-known appropriation artist, Richard Prince, which used Patrick Cariou’s photographs in a series of collages, constituted fair use. In Kienitz v. Sconnie Nation LLC, U.S. Circuit Judge Frank Easterbrook joins in on criticism that courts, such as in the Cariou case, are placing too much emphasis on the transformative use factor in considering fair use. However, Law360 (subscription required) quotes Reed Smith’s Brad Newberg who zeroes in on a deeper danger for authors’ derivative rights: “The issue with Cariou is not that it gives great weight to a transformative use, but how it defines transformative use.”

Latest FTC Settlement Determines Yelp Had 'Actual Knowledge' of Collecting Children's Info

Yelp recently settled allegations made by the FTC that it violated the Children’s Online Privacy Protection Act (COPPA) Rule, and has agreed to pay a $450,000 civil penalty for the violation, according to an FTC press release.  The Yelp case underscores that online services that ask for users' ages in the registration process will be deemed as having “actual knowledge” of that information.  Therefore, whether a site is directed to children or not, a registration process including an age field effectively turns the process into an “age filter,” and may put the site at risk of violating COPPA.  For more information on this case, please read our recent client alert authored by John Feldman.