Adlaw By Request : Advertising & Marketing Lawyer & Attorney : Reed Smith Law Firm : AdLaw By Request & KidAdLaw

The global attack on advertising to children draws broad battle lines. As proposed by the European Parliament Committee on the Internal Market and Consumer Protection on July 19, 2011, the draft agenda for 2012 demonstrates a distrust of advertising generally, not just in relation to marketing of food products. The Committee has proposed a ban on all advertising on television and on “direct advertising towards children under the age of 12.” The European lawmakers are basing their proposal on the reasoning that “children are children” and not “consumers.” The report does not explain this rationale. 

What about teenagers? Are they “consumers”? Can they make informed choices? At what age exactly does one make “informed choices” about things like which toy to desire, which sneakers to admire, which brand of yogurt to crave, or which activity to yearn for? And, when does a person learn how to discern the difference between a commercial and non-commercial speech? Furthermore, is it possible to restrict advertising to just children under the age at which they cannot appreciate the persuasive nature of advertising? How many media are segmented so clearly that one can be assured that a ban targeting children under 12 will not restrict advertising to those 12 years old or older? 

These questions are the same as those that are being researched and discussed in the United States, most recently in the context of the Interagency Working Group Proposal on Food Marketing to Children, which includes a proposal to extend restrictions (not a ban) to marketing activities directed to those 17 years of age or younger.  The primary difference, mentioned by many commenters in response to the IWG’s request for comments, is that in the United States, commercial speech is protected by the U.S. Constitution. Without that civil right, Europeans are vulnerable to governmental intervention that can chill truthful, informative speech and deny members of a consuming public – including children and adolescents – exposure to a world with choices and persuasive forces. Proposals for advertising bans such as the one in Europe may promote an extension of childhood ignorance and deny children the tools and experience by which they, along with their parents, can begin to discover what it means to be a discerning member of society.

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Jackie O, Better Midler and Vanna White are leading ladies who paved the way in “look alike” and “sound alike” lawsuits. Now, Kim Kardashian is stepping into the ring against Old Navy. The suit (Kardashian v. The Gap Inc., et al., case number 2:11-cv-05960), in the U.S. District Court for the Central District of California, specifically alleges violation of California's right-of-publicity statute and the Lanham Act, seeks unspecified damages, and an injunction barring Old Navy from using Kardashian look-alikes in future ads. Kardashian claims that the Old Navy ad “incorporated a storyline associated with (her) likeness, identity and persona” to highlight the look-alike’s resemblance.

At issue is whether consumers will be shown to be confused by Old Navy’s Kim Kardashian look alike and, if so, whether the court will follow the ruling in the Bette Midler case and find that “the defendants . . . for their own profit in selling their product did appropriate part of her identity” through the use of a look alike. It remains to be seen whether, as in the Lindsay Lohan lawsuit against eTrade, documents will surface in discovery that evidence Old Navy’s attempt to emulate Kardashian. Old Navy did, however, post the following Tweet: “@CBSNEWS reports that Old Navy's Super CUTE star looks like @kimkardashian. #LOL. What do you think?” As an interesting side note, the alleged look alike, Melissa Molinaro, is said to be dating Kim’s ex, Reggie Bush.

So, what do you think, does Kim have a case?

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Environmental Leader:  Kenmore, Rheem, LG to Display New Energy Star Seal

Electrolux, Sears Kenmore, LG and Samsung are a few of the brands that have earned a new Energy Star label designating the most energy-efficient products in each category.

Time:  States Fight Back Against City Laws on Unhealthy Food

The city of Cleveland took a stand against unhealthy restaurant food this year, adopting a ban on added trans fats. The new law could have helped reduce heart disease in the city, but before it could take effect, the Ohio state government stepped in — and overturned the ban.

Reuters:  Florida court upholds $30 million tobacco award

The Florida Supreme Court on Tuesday upheld a jury's order that the R.J. Reynolds Tobacco Co pay nearly $30 million to a woman whose husband died of lung cancer after decades of smoking its cigarettes.

FTC.gov:  FTC Proposes 'Lighting Facts' Labels for Additional Types of Light Bulbs to Help Consumers

The Federal Trade Commission is seeking public comments on proposed amendments to the Appliance Labeling Rule that would require a “Lighting Facts” label on additional types of light bulbs to help consumers select the most efficient bulbs to meet their lighting needs, and a specific test procedure for light-emitting diode (LED) bulbs.

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Washington Post:  Ubiquitous ‘tiny belly’ online ad part of scheme, government says

It might be the ad that ate the Internet.

“1 Tip for a Tiny Belly” reads the headline, rendered in what appears to be hand-lettered type and positioned above a crudely animated drawing of a woman’s bare midriff. Try as you might to concentrate on something else, the midriff distracts your eye by shrinking and reinflating — flabby to svelte, svelte to flabby.

Reuters:  WHO wants more graphic warnings to cut smoking rates

More than a billion people in 19 countries are now covered by laws requiring large, graphic health warnings on tobacco packs but too many countries are still not doing enough to cut smoking rates, the World Health Organization said on Thursday.

Medical Marketing & Media:  Pharmas ask FDA for guidelines on off-label info

Seven large pharmas filed a citizen petition with FDA asking for guidance on communication about off-label uses for products.

Environmental Leader:  SC Johnson Removes Windex Green Seal, Settles Suit

SC Johnson will stop using its Greenlist logo on U.S. Windex products as part of the resolution to two lawsuits, the household products company has announced.

Media Post:  IAB Sets Rules For Online Ad Research

The Interactive Advertising Bureau has introduced a set of best practices for conducting online ad effectiveness research.

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Business Week:  Google Sued for $421 Million by Paris Rival for Ad Policies

Google Inc. was sued in France by a local competitor over claims the world's largest search engine blocks rivals from reaping advertising revenue and gives preference to its own sites in query results.

US Law Watch:  Split Supreme Court Strikes Vermont Data Mining Law, Says Statute Burdens Free Speech

In a 6-3 decision, the U.S. Supreme Court June 23 declared unconstitutional a Vermont statute that bars pharmacies from selling or disclosing information that identifies physicians and the medications they prescribe for marketing purposes and precludes pharmaceutical manufacturers from using such information to market their products (Sorrell v. IMS Health Inc., U.S., No. 10-779, 6/23/11).

FTC.gov:  FTC Settlement Prohibits Marketer from Claiming that Nivea Skin Cream Can Help Consumers Slim Down

Beiersdorf, Inc. to Pay $900,000 to Settle FTC Charges

As part of its ongoing efforts to protect consumers from over-hyped advertising claims, the Federal Trade Commission reached a settlement requiring Nivea skin cream maker Beiersdorf, Inc. to stop claiming that regular use of its Nivea My Silhouette! skin cream can significantly reduce consumers’ body size. The company also has agreed to pay $900,000 as part of the settlement.

The Hill:  Bill would tighten rules for dietary supplements

The dietary-supplement industry is pushing back against new restrictions proposed by Sen. Dick Durbin (D-Ill.).

Durbin introduced a bill Thursday to tighten labeling requirements for supplements. It would require the Food and Drug Administration to define the difference between supplements and food products. Under current law, companies can choose which way to classify and market their products.

LA Times:  Restaurants want more leeway in how they post calorie counts

The restaurant industry wants the FDA, which is developing rules for displaying calorie counts on menus, to allow restaurants more discretion in the way the numbers are presented. It also seeks a delay in implementing the rules.

The restaurant industry has asked the federal government to tone down and delay some of its proposed rules for displaying calorie counts on menus.

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