The Association of National Advertisers recently asked me for predictions on legal challenges brands will be facing in 2018. You can find the article here. Registration is required for the ANA website.… Continue Reading
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.… Continue Reading
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.… Continue Reading
One of the goals of the federal JOBS Act, enacted in 2012, was to expand the ability of companies (both operating companies and funds) to make non-registered securities offerings using general solicitation and advertising. Offers made through general solicitation and advertising have been prohibited under the SEC's private offering safe harbor ever since Regulation D was adopted in 1982, and many have complained that the restriction was pointless where all purchasers were accredited investors as defined in Regulation D. However, the SEC believed a change required legislation.
The JOBS Act made that change. However, the Act, and the new rule adopted in 2013, imposed a new requirement - the issuer of the securities must take reasonable steps to "verify" that all the purchasers in a general solicitation offering are accredited investors. Failure to take reasonable verification steps would violate the rule even if it turned out that all purchasers actually were accredited.… Continue Reading
The ASA has taken the “unusual step” of immediately removing an ad by a company called Koosday for a club night featuring a man slumped against a car with the text “I DON’T WANT TO DIE SOBER”. The ad appeared on car bonnets and prompted a complaint that it irresponsibly linked alcohol with driving. The … Continue Reading
We wanted to share the following best practice tip with our readers who conduct sweepstakes, contests, and other prize-based promotions: When conducting such promotions, we always recommend that our clients have the potential winners execute and return a set of verification documents before confirming them as winners. Generally, this involves having the winner sign an affidavit and release form confirming their eligibility, compliance with the official rules of the promotion, and releasing the sponsor (and their agencies and parents, subsidiaries, and affiliates) from any liability that may arise in connection with the promotion. In addition, if you need to conduct a background check on the potential winners before issuing a prize to them, you should have them complete a form authorizing you (and/or your agencies) to do so prior to obtaining any consumer reports from a consumer reporting agency. Under the federal Fair Credit Reporting Act (FCRA), consumer reporting agencies may only issue consumer reports with a consumer's consent, or for one of the other delineated permissible purposes. Obtaining a properly executed authorization will not only allow you to conduct your background check more seamlessly, but it will also help to reduce the risk in playing part to a potential FCRA violation, which can result in high statutory penalties.… Continue Reading
Effective September 1, 2014, all advertising commercials, sponsorship messages and promotions broadcast on television stations in Canada must be aired with closed captions for the hearing impaired. This requirement may necessitate that you add closed captioning to commercials previously produced and aired that will be broadcast on or after September 1st.
For a complete explanation of the requirements, please download the Institute of Communications Agencies (ICA) member bulletin.… Continue Reading
As we have previously reported here, native advertising is intended to form a part of users’ online experiences, aiming to engage and compel with minimal disruption. Often the content of native advertising is high quality, reaching out to an audience’s wants and needs, sometimes going viral. Clearly marketers are working within divergent boundaries; creating appealing … Continue Reading
Once again advertisers triumphed with their creativity in the Super Bowl ads, this year costing them a reported $4million per 30-second spot. We saw Don Cheadle, his llama, and a ping-pong playing Arnie for Bud Light’s “Epic Night”, and speaking of A-list celebrities, how about Bruce Willis hugging it out for Honda? Sodastream avoided 2013’s competitor-targeting controversy by … Continue Reading
Last week the ASA announced that it has struck a new deal with Trading Standards to enable the membership association to act as a legal backstop to take action against brands who persistently breach the CAP code through "misleading, aggressive or otherwise unfair" non-broadcast ads. Trading standards can consider taking action against advertisers referred by … Continue Reading
Sci-fi fans will be familiar with the interactive ads featured in the world of the film Minority Report, starring Tom Cruise, where upon entering a shopping mall, shoppers’ eyes were scanned to allow the shops to specifically target ads based on a particular shopper’s previous habits, e.g. "Good afternoon, Mr. Yakamoto. How did you like … Continue Reading
When businesses pay for goods and services, they generally like to receive them. Unfortunately, as any bankruptcy lawyer will tell you, this consistent desire is not matched by uniform experience.
Most recently, the bankruptcy of KSL Media again illustrated the risks and concerns when an advertiser entrusts significant funds to an entity that is too thinly capitalized or, as some allege, guilty of diverting funds that were to be passed through and in breach of a fiduciary duty to its clients. KSL's bankruptcy, of course, was also noteworthy not because KSL was a start-up, but because it was not. We might expect capitalization risks with start-ups. But KSL was an established media company that failed. So the question remains: how can advertisers protect funds entrusted to suppliers, particularly those that are earmarked for payments to third parties?… Continue Reading
The internet was set alight last week with witty remarks from Jonathan Perelman, vice president of BuzzFeed, at this year’s Abu Dhabi Media Summit as he proclaimed users are, “more likely to summit Mount Everest than click on a banner ad”. His comments are timely as the industry has recently woken up to the effectiveness … Continue Reading
The future of the Do-Not-Track working group remains unclear, according to a recent survey taken among its participants. Forty-three of the 100 or so working-group participants submitted responses to the survey, which proposed five paths for the group moving forward.
According to the survey, 17 participants voted that they have "no confidence" in the group and that all work should be discontinued. Some of the comments described the proceeding as "so flawed [that] it's a farce." Others called the progress made to date, "shameful." Other participants remained somewhat more hopeful; though, ideas on how to achieve a more meaningful Do-Not-Track standard varied. Twenty-six participants voted against continuing to stay on the current path and resolving the remaining open issues as outlined in the proposal. The remaining proposals, which garnered the most votes, recommended splitting up the working group's focus on establishing a technical means for sending a Do-Not-Track signal and establishing compliance standards for when a company receives a signal.… Continue Reading
Last week, Facebook announced some good news for businesses that use the social networking site to administer competitions, sweepstakes and other promotions. Under Facebook’s previous terms and conditions for Pages, the Facebook pages created and driven by "bands, businesses, restaurants, brands and celebrities" to connect with fans and customers, businesses were only able to make … Continue Reading
With news in this week that a certain Swedish retailer has joined the list of companies whose beef products have been found to contain elements of horsemeat, it is interesting to take a look at how the advertising industry has reacted to this debacle. Many brands are using the now Europe-wide “horsemeat scandal” to their advantage. Last … Continue Reading
In 2012, streaming entertainment accounted for almost half of peak Internet traffic. In 2013, the online viewing phenomenon continues to generate massive amounts of actionable information about named consumers, from interests to habits to schedule to mood. Until now, the Video Privacy Protection Act – launched in the heyday of VHS – has blocked companies … Continue Reading
On Monday, the French Internet service provider, Free, reneged on its original decision to place a default ad-blocking filter on its customers' routers after receiving pressure from advertisers and the French government. To learn more about this story, read the latest post on our Advertising Compliance blog, ReACTS.… Continue Reading
As you are aware, for the last several years, the industry and SAG-AFTRA have been jointly engaged in a progressive study to investigate, develop and build a GRP-based residual system as an alternative to the current residual payment model under the SAG Television + AFTRA Television Commercials Contracts.
The industry and the unions agreed as part of the 2009 Commercials Contracts negotiations to conduct a year-long pilot test of such a system and which is called the "GRP-E Pilot." In addition the parties agreed to hold early bargaining on or about October 2011 to discuss the results of the GRP Pilot and bargain over the possible implementation of the GRP System. The parties subsequently agreed to defer that obligation as part of a one-year extension of the obligation to bargain successor agreements to the 2009 Commercials Contracts.… Continue Reading
It’s a UK first and may be the future of print advertising. Open a limited edition copy of Marie Claire’s October issue at page 35 and you can enjoy passion and betrayal against a Sicilian backdrop, directed by Mario Testino, in black and white, complete with soundtrack – and all in just forty five seconds. … Continue Reading
The issue of data collection is an important one in online privacy, particularly as it applies to ad networks. This issue is especially contentious in the context of Do Not Track mechanisms. A number of browsers - such as Safari, Internet Explorer, and Firefox - have mechanisms that permit consumers to instruct websites not to track their activities across the web. The FTC has said on numerous occasions, though, that an effective Do Not Track system should go beyond opting consumers out of receiving targeted advertisements; it should opt them out of the collection of behavioral data for all purposes, unless the purpose is consistent with the context of the interaction (e.g., to prevent click-fraud). Such sentiments were expressed in the FTC's Privacy Report, as well as its testimony before Congress.… Continue Reading
The National Labor Relations Board's recent decision in Costco Wholesale Inc., invalidated certain personnel policies, including social media policies, protecting the dissemination of employee health information and personal identifiers. This case marked the NLRB's first decision involving its independent General Counsel's interpretation of federal labor law as it applies to social media and other personnel policies. The decision (profiled here by Joel Barras) signals the NLRB's agreement with its chief prosecutor's attack on commonly adopted policies regarding, among other things, confidentiality of company information, and follows the series of reports issued by the NLRB General Counsel on social media.… Continue Reading
In a 2-1 decision on August 24, 2012, the U.S. Court of Appeals for the District of Columbia upheld a federal district court's decision to strike down FDA regulations promulgated under the Family Smoking Prevention Act (the "Act"), which would have required large graphic and textual warning labels on cigarette packaging.… Continue Reading
On Tuesday, the FTC approved a final order and consent decree settling charges that MySpace misrepresented its protection of users’ personal information. The settlement bars MySpace from future misrepresentations about its privacy practices, and requires MySpace to implement a comprehensive privacy program with regular, independent privacy assessments for the next 20 years. For more information, … Continue Reading