The California Court of Appeal (the Court) has affirmed a trial court’s grant of preliminary injunction, enjoining HomeAdvisor’s use of allegedly misleading language in advertisements.  See People ex rel. Gascon v. HomeAdvisor, Inc., No. A154960 (Cal. Ct. App. June 5, 2020).

The lawsuit was brought by the People of the State of California (the People), acting by and through the San Francisco District Attorney.  Specifically, the People claimed that HomeAdvisor’s advertisements were “false and misleading because they are likely to deceive consumers into believing that all service professionals hired through HomeAdvisor who come into their homes have passed criminal background checks.  That is not the case.  The only person who undergoes a background check is the owner/principal of an independently-owned business.”  Id. at *1.
Continue Reading Court of Appeal Affirms: No First Amendment Protection for Misleading Commercial Speech

An increasing number of celebrities and social media personalities are endorsing the use of cannabidiol (CBD) products through social media. Many of these “influencers,” however, fail to account for and comply with the complex regulatory environment surrounding CBD advertisements. In the United States, the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) both limit the use of certain language in CBD endorsements. As these advertisements attempt to reach the broadest possible audience, violations by influencers are especially noticeable to regulators, who have stepped up their enforcement efforts in this area.
Continue Reading CBD Advertisements: What Celebrity Influencers Need to Know

Venable attorneys Marcella Ballard and Kristen Ruisi recently participated in an MIP Global Trademark Forum panel on Responsible Advertising, Social Media and Influencers. With Marci moderating and Kristen presenting, the panel also included Jessica E. Cardon, deputy general counsel at Quality King Distributors; Lydia Cheuk, deputy general counsel at Away; and Melissa Moriarty, assistant general counsel at VaynerMedia. During their discussion, panelists shared the following insights:

  1. Brands are relying more on influencers, leading to increased FTC scrutiny

Kristen spoke about how the FTC is becoming stricter in its enforcement of its guidelines, which strive to prevent influencers from making false claims about products or services they haven’t tried and ensure that consumers are aware of advertising relationships. While the responsibility to disclose relationships with the brand they are promoting or endorsing ultimately rests with the influencer, brands still have to work with influencers to ensure they are meeting their disclosure obligations.


Continue Reading Panel Recap: Responsible Advertising, Social Media and Influencers

The Federal Trade Commission held a workshop earlier this week in Washington, D.C., to discuss possible updates to the COPPA Rule, which implements the Children’s Online Privacy Protection Act (“COPPA”). COPPA was originally enacted in 1998 and regulates the way entities collect data and personal information online from children under the age of 13. The Rule hasn’t been updated since 2013, and the intervening years have produced seismic technological advances and changes in business practices, including changes to platforms and apps hosting third-party content and marketing targeting kids, the growth of smart technology and the “Internet of Things,” educational technology, and more.

For the most part, FTC staff moderators didn’t tip their hand as to what we can expect to see in a proposed Rule revision. (One staff member was the exception, whose rapid-fire questions offered numerous counterpoints to industry positions, so much so that the audience would be forgiven for thinking they were momentarily watching oral argument at the Supreme Court.) Brief remarks from Commissioners Wilson and Phillips staked out their positions more clearly, but their individual views were so different that they too offered little assistance in predicting what a revised Rule may look like. Commissioner Wilson opened the workshop by sharing her own experience as a parent trying to navigate and supervise the games, apps and toys played by her children, and emphasized the need for regulation to keep up with the pace of technology to continue protecting children online. Commissioner Phillips also referred to his children at one point, but his remarks warned against regulation for regulation’s sake, flagged the chilling effect on content creation and diversity when businesses are saddled with greater compliance costs, and advocated a risk-based approach.


Continue Reading A Recap of the FTC’s COPPA Rule Workshop

Many in the industry are familiar with the following scenario. A young gamer, grinding tirelessly for untold hours perfecting her skill, honing her strategy, finally qualifies for an esports tournament. For that gamer, the true hard work begins after qualification. She now has to try to convince her parents to agree to let her participate, which may include travel (though compensated) to a far off location. In many cases, the first time the parents become aware that their child even entered a tournament (much less won an all-expense paid trip to an esports tournament) is this conversation—after the child has already been offered compensation to travel to and compete in the tournament.

If you are a game publisher, tournament organizer, or otherwise involved in the logistical chain of events described herein, there may be a big problem. The collection and use of data provided by children is regulated in the United States by the Children’s Online Privacy Protection Act (“COPPA”). COPPA is designed to protect the privacy of children by establishing certain requirements for websites that market to children. Most notably, COPPA requires website operators to obtain “verifiable parental consent” before collecting personal information from children. The FTC operates under the assumption that if children are the target demographic for a website, the website must assume that the person accessing the website is a child, and proper consent must be obtained. This assumption exists even if the website did not start with children as the target audience.


Continue Reading Update Required for Youth Esports – Children’s Privacy Takes Center Stage at Upcoming FTC Workshop